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The Federal Practice Group Worldwide Service Wins Summary Trial before the Armed Services Board of Contract Appeals

Written by: Federal Practice Group
Written by: Federal Practice Group

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On May 17, 2016, Attorney Eric S. Montalvo and Attorney Lauren R. Brier received a favorable decision from an appeal filed before the Armed Services Board of Contract Appeals (“ASBCA”).

Back in June 2014, Attorney Montalvo filed an appeal with the ASBCA on behalf of Zuhmat Group Construction, a company hired by the Department of the Army to supply generators to various government owned locations in Afghanistan. Under Zuhmat’s contractual agreement with the Army, it received thirteen different delivery orders from the Army for various types of generators. Zuhmat performed under the contract from December 2010 through the contract’s time of completion, December 2011. At the close of the contract, Zuhmat had received payment from the Army for nine of the thirteen performed orders. The Army denied Zuhmat’s request for payment on the remaining four orders as a result of alleged failed deliveries and cancellations.

In response, Attorney Montalvo filed a certified claim with the contracting officer requesting payment on the four outstanding orders. Attorney Montalvo supported Zuhmat’ s claim with email records demonstrating Zuhmat began and/or tendered performance under the four outstanding orders pursuant to Army directives. Despite this evidence, the contracting officer denied Zuhmat’s certified claim on January 15, 2015.

As a result of the Army’s refusal to pay, Attorney Montalvo filed an appeal with the ASBCA claiming Zuhmat was entitled compensation for delivery fees and invoices left outstanding on Zuhmat’s four orders. Zuhmat again claimed it had sufficient evidence to show that it properly began and/or tendered performance under the four outstanding orders.

To resolve the appeal, a summary proceeding was held before an Administrative Judge of the ASBCA in Dubai, UAE on May 9, 2016. Prior to the proceeding, both parties agreed that all decisions by the Administrative Judge were to be final, conclusive, and not appealable. Leading up to the proceeding, Attorney Brier filed a pre-hearing brief claiming there was sufficient documentary evidence in the record to support Zuhmat’s full recovery on appeal. At the proceeding, Attorney Montalvo claimed that on two of the unpaid orders, the Army wrongfully denied acceptance of the generators after Zuhmat reached its delivery locations. On the final two unpaid orders, Attorney Montalvo presented an extensive email record demonstrating that the government accepted the delivered generators, but failed to pay Zuhmat after completed delivery.

On May 17, 2016, the Administrative Judge issued a binding decision sustaining Zuhmat’s appeal on all four orders. The Administrative Judge determined Zuhmat’s appeal was completely supported by indisputable evidence on the record and credible testimony presented by Zuhmat’s witness at the proceeding. As a result of this decision, Attorney Montalvo and Attorney Brier were able to recover full payment on all four of Zuhmat’s unpaid invoices, plus interest.

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