Contractor Waited Too Long To Get Paid; Appeal of Anis Avasta Construction Company, ASBCA No. 61926

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Government’s motion for summary judgment alleging untimely claim is granted. The contractor completed the contract in 2011. It asked the government for payment in 2012. The contractor then did nothing until 2018 when it followed up seeking payment again. The government denied the contractor’s claim, and the contractor appealed to the ASBCA. The board found that the claim accrued when the contractor had completed work on the contract in 2011. The claim was filed in 2018, which was after the CDA’s six-year statute of limitations had run.

The government awarded Anis Avasta Construction Company a contract to dig a water well in Afghanistan. In September 2011, Anis Avasta notified the contracting officer the project was complete. The contracting officer’s representative stated that they would forward paperwork to the special operations task force.

Nothing more happened for over a year. In September 2012, Anis Avasta emailed the special operations task force to ask if anyone had signed its invoice. For the next two months, Anis Avasta exchanged emails about documents and signatures that needed to be obtained before payment. In the last email, sent in November 2012, Anis Avasta stated that it would obtain a signature from the contracting officer’s representative.

But Anis Avasta and the government did not communicate for the next six years. In October 2018, Anis Avasta emailed the special operations task force asking about payment. The task force responded that it no record that the contract had even been performed. After exchanging additional emails in which the government denied liability for the well, Anis Avasta appealed to the ASBCA. The government moved for summary judgment, asserting that Anis Avasta’s claim was barred by the statute of limitation.

The board agreed with the government. The Contract Disputes Act requires that a claim must be filed within six years after it accrues. For purposes of the appeal, the board found that a contract existed and that work on the contract was completed in September 2011. As of that date, the facts leading to the claim for payment were knowable by the parties and thus the claim accrued. Anis Avasta, however, did not submit a claim until seven years later.

Anis Avasta argued that its claim did not accrue until November 2012 when it sent an email stating that it would obtain a signature from the contracting officer’s representative. But the board found nothing special about this date. It did not change the fact that Anis Avasta knew that it had completed the contract in 2011.

Anis Avasta alleged that it was in continuous communication with the government and this should somehow toll the claim. The board, however, noted that there were gaps in the communications—one of which was over five years. The board refused to find this communication impacted the accrual of the claim.

Anis Avasta is represented by its President and CEO, Shujah Mowafaq. The government is represented by Jeffrey P. Hildebrant and Isabelle P. Cutting of the Air Force.

ASBCA - Anis Avasta Construction Company