Bcc-Uiprojects-Zaaztc Team Jv v. Secretary of the Army

• Court: Court of Appeals for the Federal Circuit
• Decided: March 27, 2024
• Docket: 22-2143
• Status: Unpublished

Opinion

Case: 22-2143 Document: 47 Page: 1 Filed: 03/27/2024

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

BCC-UIPROJECTS-ZAAZTC TEAM JV, Appellant

v.

SECRETARY OF THE ARMY, Appellee ______________________

2022-2143 ______________________

Appeal from the Armed Services Board of Contract Ap- peals in No. 62846, Administrative Judge J. Reid Prouty, Administrative Judge Michael N. O’Connell, Administra- tive Judge Richard Shackleford. ______________________

Decided: March 27, 2024 ______________________

PATRICK BERNARD KERNAN, Kernan and Associates Law Group, PLLC, Washington, DC, argued for appellant.

DANIEL B. VOLK, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washing- ton, DC, argued for appellee. Also represented by BRIAN M. BOYNTON, WILLIAM JAMES GRIMALDI, PATRICIA M. MCCARTHY. ______________________ Case: 22-2143 Document: 47 Page: 2 Filed: 03/27/2024

Before PROST, TARANTO, and HUGHES, Circuit Judges. PROST, Circuit Judge. BCC-UIProjects-ZAAZTC Team JV (“B-U-Z”) 1 appeals an Armed Services Board of Contract Appeals (“Board”) de- cision dismissing B-U-Z’s Board appeal. For the reasons below, we affirm. BACKGROUND B-U-Z was formed for the purpose of bidding on a gov- ernment construction contract. The B-U-Z joint-venture agreement provided that: Both parties agreed to introduce and authorize Mr. Ahmad Tariq Barakzai to sign the contract on behalf of the joint venture and [he] is authorized to sign solicitations, applicable amendments, and bind the entire joint venture to its obligation under any contract which may result from the solicita- tion. J.A. 193 (emphasis in original). The agreement was signed by Dr. Zahed2 as VP of ZAAZTC and Mr. Barakzai as pres- ident of BCC. J.A. 194. In 2011, the government awarded B-U-Z the solicited contract and, as contemplated by the joint-venture agreement, the contract between the govern- ment and B-U-Z was signed by Mr. Barakzai. J.A. 107

1 Behnam Construction Company (“BCC”); United Infrastructure Projects (“UIP”); Zamarai Ali Ahmad Zada General Trading and Construction Company (“ZAAZTC”). 2 We have adopted the Board’s convention of refer- ring to “Dr. Zahed” with the same spelling throughout, while likewise noting that there are some spelling varia- tions across the documents. See J.A. 3 n.4; see also J.A. 194 (“Dr. Wahid Zahedi”); J.A. 202 (“Dr. Wahidullah Zhed”); J.A. 2448 (“Dr. Wahidullah Zahed”). Case: 22-2143 Document: 47 Page: 3 Filed: 03/27/2024

BCC-UIPROJECTS-ZAAZTC TEAM JV v. SECRETARY OF THE ARMY 3

(Name and Title of Contractor or Person Authorized: Ah- mad Tariq Barakzai/Team President). On July 17, 2014, the contracting officer received a “re- quest for equitable adjustment (REA)” that generally sought compensation for “delay days” and “differing site condition[s].” J.A. 2444. The REA was signed “Dr. Wa- hidullah Zahed . . . Vice President . . . BCC-ZAAZTC.” J.A. 2448. On March 23, 2015, Mr. Barakzai sent a letter to the contracting officer that stated, “only Mr. Ahmad Tariq Bar- akzai has the legal rights to enter into contractual negoti- ations and/or claims with [United States Army Corps of Engineers] USACE and claims submitted to USACE by BCC-ZAAZTC JV-UIP Team officials and not signed by Mr. Ahmad Tariq shall be immediately dismiss[]ed by USACE.” J.A. 189. It further stated that any other indi- vidual submitting claims related to the contract “has no le- gal authority to do so.” Id. Subsequently, another correspondence titled “[r]equest for [e]quitable [a]djustment” and dated May 27, 2015, was sent to the contracting officer. J.A. 199–202. Like the July 2014 REA—which Mr. Barakzai indicated was unauthor- ized and should be dismissed—this request was also signed “Dr. Wahidullah Z[a]hed . . . Vice President . . . BCC- ZAAZTC.” J.A. 202. USACE sent Mr. Barakzai two emails inquiring about whether anything had changed since his March 23, 2015 letter. J.A. 2517–18. The emails explained that the con- tracting officer had received a May 2015 request signed by Dr. Zahed. Id. Based on Mr. Barakzai’s earlier letter, USACE reiterated its understanding that “USACE is to not accept such [an] REA or claim.” J.A. 2518. However, the emails generally provided Mr. Barakzai with an oppor- tunity to indicate that the May 2015 request was author- ized or to authorize it. J.A. 2518. Mr. Barakzai responded by stating that “[t]he REA has been submitted to USACE Case: 22-2143 Document: 47 Page: 4 Filed: 03/27/2024

by unauthorized parties without Mr. Ahmad Tariq Bar- akzai’s consent.” J.A. 2517. In 2021, B-U-Z appealed from what it termed “the con- tracting officer’s deemed denial” of its 2015 claim. 3 J.A. 104. The Board dismissed B-U-Z’s appeal on several alternative grounds. Relevant for our disposition, the Board concluded that (1) B-U-Z had not submitted a claim because neither REA was submitted by someone with au- thority to bind the joint venture and (2) even assuming that Dr. Zahed had authority to submit claims on behalf of B-U-Z, Mr. Barakzai, who was undisputedly authorized to bind the joint venture, had withdrawn those claims. See J.A. 11–15. B-U-Z timely appealed to this court. We have jurisdic- tion under 28 U.S.C. § 1295(a)(10). DISCUSSION We review the Board’s decisions on questions of law de novo. 41 U.S.C. § 7107(b)(1). The Board’s jurisdiction un- der the Contract Disputes Act (“CDA”) presents a question of law. Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed. Cir. 1995) (en banc). The interpretation of a government contract is also a question of law. Triple Canopy, Inc. v. Sec’y of Air Force, 14 F.4th 1332, 1338 (Fed. Cir. 2021). “As a prerequisite for the Board’s jurisdiction, the CDA requires a contractor to present a valid claim over which the contracting officer has rendered a final decision.” Par- sons Glob. Servs., Inc. ex rel. Odell Int’l, Inc. v. McHugh, 677 F.3d 1166, 1170 (Fed. Cir. 2012). The CDA itself

3 Since we conclude that any submitted claim was unauthorized and withdrawn, communications from the contracting officer that might be considered as part of a de- nial or timing-of-denial analysis are unimportant for our purposes, so they have not been discussed. Case: 22-2143 Document: 47 Page: 5 Filed: 03/27/2024

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contemplates that claims are “by a contractor.” 41 U.S.C. § 7103(a)(1), (a)(2). Section 7101(7) defines “contractor,” as used in chapter 71, as “a party to a Federal Government contract other than the Federal Government.” Here, the Board concluded that because the contracting officer was never presented with a request for decision by a contractor, there was no claim under the CDA. We agree that the requests Dr. Zahed submitted to the contracting officer were not requests by B-U-Z. 4 As a result, we do not reach the parties arguments about whether the REAs were requests for final decisions or whether the Board properly dismissed the claims as untimely. There is no dispute that the only contractor here was B-U-Z. The only question is whether REAs submitted by Dr. Zahed were requests by B-U-Z. We agree with the Board that Dr. Zahed was not authorized by the joint-ven- ture agreement to submit claims on behalf of B-U-Z. Thus, his submissions to the contracting officer were not B-U-Z’s claims or requests. B-U-Z argues that the Board incorrectly concluded that Dr. Zahed did not have authority to submit claims under the joint-venture agreement. Further, B-U-Z argues that the claims were authorized because BCC and ZAAZTC sent

4 In general, B-U-Z’s briefing appears to acknowledge that there is a distinction between the issue of whether a claim was submitted by a contractor and the issue of whether a claim contains a compliant CDA certifi- cation. Nonetheless, B-U-Z argues that, “to the extent that the Board found” a certification defect, “this defect can be cured and does not divest the Board of jurisdiction.” Ap- pellant’s Br. 17. We agree with the Board that its determi- nation that a claim was not submitted by the contractor is distinct from a determination that the claim’s certification contained a technical defect. J.A. 11 n.16. Case: 22-2143 Document: 47 Page: 6 Filed: 03/27/2024

their settlement agreement to the contracting officer. These arguments are unpersuasive. First, we agree with the Board that the best reading of the joint-venture agreement is that it granted Mr. Bar- akzai sole authority to bind the joint venture, which in- cluded sole authority to bring claims on behalf of the joint venture. The Board correctly determined that the contract pro- vision broadly authorizing Mr. Barakzai to sign the con- tract, solicitations, and applicable amendments as well as to “bind the entire joint venture to its obligation under any contract which may result from the solicitation” encom- passed an authorization to submit claims, even though claim submission was not explicitly enumerated. J.A. 12– 13 (quoting J.A. 193). Next, we agree with the Board that this grant of au- thority to Mr. Barakzai was to the exclusion of others. J.A. 13. B-U-Z argues that Dr. Zahed had authority be- cause, as a default matter, each member of a joint venture can act on the joint venture’s behalf. However, this default rule serves to reinforce the conclusion that the contract lan- guage at issue granted Mr. Barakzai exclusive authority. Under B-U-Z’s reading, the clause would simply indicate authority Mr. Barakzai already had by virtue of his role as BCC’s president—authority that unlisted others would share—without having any other effect. This would render the clause superfluous. “A reasonable interpretation must ‘assure that no contract provision is made inconsistent, su- perfluous, or redundant.’” Medlin Constr. Grp., Ltd. v. Harvey, 449 F.3d 1195, 1200 (Fed. Cir. 2006) (quoting Lock- heed Martin IR Imaging Sys., Inc. v. West, 108 F.3d 319, 322 (Fed. Cir. 1997)). Here, the most reasonable interpre- tation of the authority provision is that it gave Mr. Bar- akzai sole authority. Regardless, even if B-U-Z were correct that the con- tract’s grant of authority is non-exclusive, the result would Case: 22-2143 Document: 47 Page: 7 Filed: 03/27/2024

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be the same. Mr. Barakzai was authorized to bind the joint venture and B-U-Z does not contend that Mr. Barakzai was not authorized to request dismissal or withdraw claims. Mr. Barakzai expressly indicated that both requests from Dr. Zahed were unauthorized and instructed the contract- ing officer to dismiss any requests Mr. Barakzai did not submit himself. See J.A. 189; J.A. 2517. We agree with the Board that irrespective of Dr. Zahed’s authority in the first instance, Mr. Barakzai’s authorized communications “ef- fectively withdr[ew] both REAs.” J.A. 14. Finally, the mere submission of BCC’s and ZAAZTC’s settlement agreement to the contracting officer did not serve to retroactively authorize or resubmit the withdrawn claims by an authorized party. As B-U-Z recognizes, the settlement agreement between the parties did not mention authority. See Appellant’s Br. 15. This agreement did not purport to alter the authority clause or submit a new claim. Instead, the settlement agreement indicated that the par- ties resolved an internal dispute about how proceeds, if any, from a claim “[ZAAZTC] covenant[ed] and agree[d] that it has submitted” would be divided. J.A. 275 (empha- sis added). Further, both entities agreed to dissolve the joint venture. J.A. 275. The Board correctly concluded that the submission of this agreement did not change the nature of the earlier claims, which were unauthorized and withdrawn. CONCLUSION We have considered B-U-Z’s remaining arguments and find them unpersuasive. For the reasons provided, we af- firm the Board’s dismissal of B-U-Z’s appeal for lack of ju- risdiction. AFFIRMED