Zafer Taahhut Insaat Ve Ticaret, A.S. v. United States
129 Fed. Cl. 454
| Fed. Cl. | 2016Background
- Zafer Taahhut Insaat ve Ticaret, A.S. (Zafer), a Turkish construction contractor, contracted with the U.S. Army Corps of Engineers to design and build facilities in Kabul under Contract No. W912ER-09-C-0025.
- A 2011 contract modification required shipment of materials into Afghanistan; materials routed through Karachi, Pakistan, were delayed when Pakistan closed its border.
- To meet the schedule, Zafer re-procured and air-shipped some materials, incurring $249,673.66 in additional costs, and submitted a Request for Equitable Adjustment (REA) seeking that amount.
- Zafer addressed the REA to an administrator in the Corps’ contracting office and certified the request, asking the addressee to “review and evaluate the matter at your earliest convenience.”
- The Government refused to pay; Zafer sued in the Court of Federal Claims under the Tucker Act alleging breach based on the Contract Disputes Act (CDA). The Government moved to dismiss for lack of subject matter jurisdiction, arguing Zafer never requested a contracting officer’s final decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Court has CDA-based jurisdiction absent a contracting officer’s final decision | Zafer treated its REA as a claim and seeks money for equitable adjustment | Government: Zafer never requested a contracting officer’s final decision, so CDA jurisdiction is lacking | Court: No jurisdiction — Zafer failed to request a contracting officer’s final decision |
| Whether the REA qualified as a request for a contracting officer’s final decision | REA listed amount and certified request; thus should be treated as a claim | REA was addressed to an administrator and used equivocal language, not a clear request for a final decision | REA insufficient: did not clearly and unequivocally request a final decision |
| Whether a request must be clear and unequivocal to trigger CDA procedures | Zafer argued substance over form and included claim amount | Government emphasized formal requirements and notice to contracting officer | Court applied Maropakis standard: request must include basis/amount and a clear request for a final decision |
| Whether dismissal should be with or without prejudice | Zafer sought relief on merits | Government sought dismissal for lack of jurisdiction | Court dismissed without prejudice (jurisdictional defect) |
Key Cases Cited
- M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323 (2010) (sets the CDA requirement that a contractor’s claim and contracting officer’s final decision are jurisdictional and defines request content)
- Reflectone, Inc. v. Dalton, 60 F.3d 1572 (1995) (an REA can, in some circumstances, be construed as a request for a contracting officer’s final decision)
- James M. Ellett Constr. Co. v. United States, 93 F.3d 1537 (1996) (no contracting officer’s final decision can exist without a contractor’s request)
- Fisher v. United States, 402 F.3d 1167 (2005) (Tucker Act requires a separate source of substantive law for money damages)
- McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178 (1936) (plaintiff must support jurisdictional allegations with competent proof)