Dubai Pearl Company

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Dubai Pearl Company ) ASBCA No. 64444 ) Under Contract No. 39-2601-0028 ) APPEARANCE FOR THE APPELLANT: Mr. Bassam M. Faraj Al-Azzawi Authorized Corporate Officer & Representative APPEARANCES FOR THE GOVERNMENT: Steven M. Sosko, Esq. DLA Chief Trial Attorney Eric Lyon, Esq. Gregory J. Gusching, Esq. Trial Attorneys DLA Disposition Services Battle Creek, MI OPINION BY ADMINISTRATIVE JUDGE O’CONNELL ON RESPONDENT’S MOTION FOR SUMMARY JUDGMENT The Defense Logistics Agency (DLA) filed what it has styled as a motion to dismiss the appeal of Dubai Pearl Company (DPC), contending that the claim was untimely. DLA briefed the motion as one for summary judgment. DPC contends that we should treat it as a motion for summary judgment. The Board agrees. We grant DLA summary judgment. STATEMENT OF FACTS FOR PURPOSES OF THE MOTION This appeal involves a contract sufficiently old that DLA represents that it no longer has any contract documents other than a contract closeout form, a document showing repayment of a deposit, DPC’s claim, and the contracting officer’s (CO) final decision (gov’t mot. at 7, 10 (citing R4, tabs 11-12)). The contract documents and emails we cite have been supplied by DPC. We assume that they are genuine for purposes of this motion. On December 20, 2011, DLA awarded DPC a contract for the sale of metallic and non-metallic scrap in Iraq. The contract contained three contract line items, each listing a minimum quantity of 20,000 kilograms of scrap and a maximum of 200,000,000. It provided that DPC would pay the government $0.53 per kilogram, with a minimum contract price of $31,800 and a maximum of $318,000,000. The performance period (or period of scrap removal) was from January 1, 2012, to December 31, 2014. The contract required DPC to pay a deposit of $3,000. (R4, tab 5) According to the Invitation for Bids, DLA intended to award multiple contracts (R4, tab 7 at 7). 1 The parties agree that DLA never made any scrap available to DPC (app. opp’n at 4; R4, tab 11). DPC has provided the Board with numerous emails. These emails show that on May 16, 2012, (before DPC had begun removals) DLA informed DPC that the Government of Iraq had exercised a “Right of First Refusal” to take the scrap (R4, tab 3 at 15). On June 2, 2012, DLA informed DPC that the Iraqi government had inspected the site and had informed the United States that it wished to take all of the scrap (id. at 23-24). However, a subsequent email from DLA on August 2, 2012, stated that the United States Embassy was working with the Iraqis to determine if there would be any scrap available for contractors (id. at 25). DPC continued asking DLA about the status of the contract through September 2012, but the record does not contain any document in which DLA provided a definitive answer as to whether there would be any scrap leftover after the Iraqi government took what it wanted (app. app’x at 45, 47, 49). DPC has also submitted what it refers to as a communications ledger that purports to summarize emails that it has not provided to the Board. This document represents that DPC continued to ask DLA about the status of its contract through November 2014, shortly before the contract term ended, and then continued to send similar emails from 2015 to 2017 (id. at 2-5). The ledger does not reflect any reply by DLA to the many emails in which DPC asked about the status. On September 21, 2017, a DLA CO emailed DPC stating that DLA needed to return DPC’s $3,025 deposit 2 and requested banking information (app. app’x at 34). The CO sent another email to DPC asking for the banking information on January 3, 2018. DPC responded by stating that it had sent the information three times and again asked about the status of the contract. It also listed its address as Glendale, Arizona. (Id. at 28, 30) An email from the CO on June 26, 2018, stated that DPC had not provided the name of the bank (id. at 22). On June 28, 2018, DLA prepared a voucher for the refund in the amount of $3,025. A DLA official approved the refund on June 29, 2018 (R4, tab 12). 1 Citations are to the .pdf page number of the electronic file. 2 The record does not explain why this amount is higher than the $3,000 deposit required by the contract, but it is immaterial to this decision. 2  On October 26, 2025, DPC submitted a certified claim for $318,000,000, which was the maximum amount it could have paid to the government under the contract (R4, tab 1 at 2). The claim alleged that in 2012 the United States had allowed the Iraqi government to seize the metallic and non-metallic scrap covered by DPC’s contract and that this “constitutes a constructive failure by the contracting agency to safeguard contractor performance and property. . .” (id. at 3-4). The CO issued a final decision on December 1, 2015. He stated that the claim was untimely and would not be considered on the merits. He further stated that if the claim were timely, there was a provision in the invitation for bids that limited the government’s liability to the amount of the deposit, which DLA had already refunded. (R4, tab 13 at 1-3) DPC filed a timely appeal on January 23, 2026. DECISION Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). When considering a motion for summary judgment, the Board’s function is not to “weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249. When considering a summary judgment motion, “all evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable factual inferences should be drawn in favor of the nonmoving party.” Dairyland Power Coop. v. United States, 16 F.3d 1197, 1202 (Fed. Cir. 1994) (citing Liberty Lobby, 477 U.S. at 255; Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)). The Board possesses jurisdiction to consider this appeal pursuant to the Contract Disputes Act (CDA), which, among other things, applies to contracts for the disposal of personal property. 41 U.S.C. § 7102(a)(4); see Seneca Sawmill Co. v. United States, 130 Fed. Cl. 774, 778 (2017) (CDA applies to contract for the sale of timber). The CDA provides that “[e]ach claim by a contractor against the Federal Government relating to a contract . . . shall be submitted within 6 years after the accrual of the claim.” 41 U.S.C. § 7103(a)(4)(A). The CDA does not define when a claim accrues. The Court of Appeals for the Federal Circuit has held that “whether and when a CDA claim accrued is determined in accordance with the Federal Acquisition Regulation (FAR), the conditions of the contract, and the facts of the particular case.” Kellogg Brown & Root Servs., Inc. v. Murphy, 823 F.3d 622, 626 (Fed. Cir. 2016). The FAR provides that “[a]ccrual of a claim means the date when all events, that fix the alleged liability of either the Government or the contractor and 3 permit assertion of the claim, were known or should have been known. For liability to be fixed, some injury must have occurred. However, monetary damages need not have been incurred.” 48 C.F.R. § 33.201. This appeal is unusual because, although the CDA applies to this contract, the FAR does not because it does not apply to contracts where the government is selling property rather than acquiring it. FAR 1.104; FAR 2.101. However, this does not change our analysis because the FAR accrual standard is sufficiently similar to the standard that the Federal Circuit has applied to contracts not governed by the CDA/FAR. For example, in a case arising out of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, the Court of Appeals stated that “‘a cause of action accrues when all the events have occurred that fix the defendant’s alleged liability and entitle the plaintiff to institute an action.’” Ariadne Fin. Servs. Pty. Ltd. v. United States, 133 F.3d 874, 879 (Fed. Cir. 1998) (quoting Fallini v. United States, 56 F.3d 1378, 1380 (Fed. Cir. 1995))). A claim accrues when a plaintiff “should have known that it had been damaged by the government’s breach.” Id. at 878. The events fixing liability “should have been known” when they occurred unless they were either concealed or inherently unknowable at the time. Alion Sci. & Tech. Corp., ASBCA No. 58992, 15-1 BCA ¶ 36,168 at 176,489 (citing Raytheon Missile Sys., ASBCA No. 58011, 13 BCA ¶ 35,241 at 173,017). A claimant need not have actual knowledge of all the relevant facts for a cause of action to accrue. FloorPro, Inc. v. United States, 680 F.3d 1377, 1381 (Fed. Cir. 2012). Only facts that could not reasonably be known by the claimant postpone claim accrual. Alion, 15-1 BCA ¶ 36,168 at 176,489 (citing United States v. Commodities Exp. Co., 972 F.2d 1266, 1272 (Fed. Cir. 1992)). The statute of limitation is an affirmative defense for which the government as the party invoking the defense bears the burden of proof. Kellogg Brown & Root Servs., Inc., ASBCA No. 58175, 15-1 BCA ¶ 35,988 at 175,823. In this appeal, the parties agree that DPC was never allowed to pick up any scrap. The contract provided that the last possible date that DPC could pick up scrap was December 31, 2014. While it is true that in the 2012 email traffic DLA held out some hope that the Government of Iraq would leave some scrap for DPC, that possibility ended on December 31, 2014. Accordingly, all the events that fixed the government’s liability should have been known as of December 31, 2014, which means that DPC had to submit its claim by December 31, 2020. Because DPC did not submit a claim until 2025, its claim is time barred. New Iraq Ahd Co., ASBCA No. 58763, 14-1 BCA ¶ 35,781 at 175,037 (Government terminated contract for default after date for appellant to deliver gravel had passed. Claim for payment of contract proceeds submitted more than six years after the termination was barred by the statute of limitations). 4  DPC also states that there are “factual issues about whether an earlier written communication should have been treated as a claim” (app. opp’n at 15). DPC points to a May 3, 2020 letter to the CO. We will assume without deciding that DPC actually sent this letter to DLA, even though DLA does not have a record of receiving it. This letter does not purport to be a claim itself but states in the first sentence that it is “an attachment to my claim regarding Scrap Contract 39-2601-0028” (app. app’x at 18). However, Dubai Pearl has not provided us with the claim to which this letter was allegedly attached. Moreover, even DPC’s communications ledger, which purports to summarize numerous documents not submitted to the Board, does not list a claim submitted in the approximate timeframe of 2020 (id.at 2). The October 26, 2025, claim at issue does not mention a 2020 claim (R4, tab 1). In any event, while DPC did complain in the May 3, 2020 letter that it had lost money on the contract and expressed interest in receiving compensation, it did not demand a sum certain or identify even an approximate amount of money to which it contended to be entitled. DPC did not request a final decision, and DPC did not certify the letter as a claim. See Zafer Constr. Co. v. United States, 40 F.4th 1365-67 (Fed. Cir. 2022). Accordingly, it is not a claim. Finally, Dubai Pearl contends that we should apply equitable tolling to its claim. A litigant is entitled to equitable tolling of a statute of limitations only if the litigant establishes two elements: “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Menominee Indian Tribe of Wis. v. United States, 577 U.S. 250, 255 (2016) (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)). The second element requires the litigant to show that the circumstances were extraordinary and beyond its control. Id. at 257. “[M]ere excusable neglect is not enough to establish a basis for equitable tolling; there must be a compelling justification for delay, such as ‘where the complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to pass.”’ Martinez v. United States, 333 F.3d 1295, 1318 (Fed. Cir. 2003) (quoting Irwin v. Dep't of Veterans Affs., 498 U.S. 89, 96 (1990)). The party seeking equitable tolling bears the burden of establishing both elements. Id. DPC contends that it meets the first element of the test because it diligently pursued its rights by sending numerous emails to DLA. It contends it meets the second element of extraordinary circumstances because of the “Iraq theatre environment, the transition of responsibilities among DLA, Embassy, Department of State, PMNOC, BOC, [] DLA successor personnel . . . DLA’s failure to identify the proper CO despite repeated requests, and the apparent unavailability or incompleteness of historical Government records.” (App. opp’n at 19) The Board disagrees. DPC did not pursue its claim diligently simply because it sent numerous emails. The emails submitted by DPC show that it was communicating 5  with a CO in 2017 and 2018, well within the statute of limitations. DPC had known for years at that point that it did not receive any scrap during the performance period and that the United States had allowed the Iraqi government to take the scrap. DPC’s damage calculation—that it is entitled to the entire amount it would have had to pay DLA if the maximum amount of scrap had been available—is not complicated. While the documents in the record suggest that DLA could have been better at responding to emails more promptly and giving DPC a final answer that there would be no available scrap, there are no documents that suggest any U.S. government official misled or tricked DPC into not submitting a claim. DPC does not meet the requirements for equitable tolling. CONCLUSION The Board grants DLA summary judgment because DPC failed to submit a timely claim. Dated: August 26, 2026 MICHAEL N. O’CONNELL Administrative Judge Vice Chairman Armed Services Board of Contract Appeals I concur I concur J. REID PROUTY JAMES R. SWEET Administrative Judge Administrative Judge Acting Chairman Armed Services Board Armed Services Board of Contract Appeals of Contract Appeals 6  I certify that the foregoing is a true copy of the Opinion and Decision of the Armed Services Board of Contract Appeals in ASBCA No. 64444, Appeal of Dubai Pearl Company, rendered in conformance with the Board’s Charter. Dated: August 26, 2026 PAULLA K. GATES-LEWIS Recorder, Armed Services Board of Contract Appeals 7