Sweet Star

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Sweet Star ) ASBCA No. 64505 ) Under Contract No. W91B4N-18-P-5056 ) APPEARANCE FOR THE APPELLANT: Sweeta Rahimi President & Chief Executive Officer Kabul, Afghanistan APPEARANCES FOR THE GOVERNMENT: Dana J. Chase, Esq. Army Chief Trial Attorney MAJ Joseph A. Seaton, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE EYESTER ON THE GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT The Department of the Army (Army) moved for summary judgment arguing Sweet Star failed to submit its claim within six years of accrual pursuant to 41 U.S.C. § 7103(a)(4)(1). In response, Sweet Star argued there was an ongoing dispute with the Army which affected the claim accrual date, or in the alternative, there were factors beyond its control which caused it to file the appeal after the six-year statute of limitations. The Army contends that equitable tolling does not apply here because Sweet Star did not diligently pursue its rights and there were no extraordinary circumstances which prevented it from filing within the time limits. For the reasons set forth below, we grant the Army’s motion for summary judgment. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. On September 4, 2018, the United States Army (Army) awarded contract No. W91B4N-18-P-5056 to Sweet Star (Sweet Star) for the delivery of information technology equipment and cable supplies for a fixed price of 14,051,489.13 AFN 1 ($203,644.77) (R4, tab 1 at 1, 3). Sweet Star was to deliver the equipment to Bagram Airfield (id. at 1). The contract incorporated by reference Federal Acquisition Regulation (FAR) 52.233-1, DISPUTES (MAY 2014) (id. at 19). 1 Afghani (AFN) refers to the local currency in Afghanistan (see R4, tab 1 at 20 incorporating by reference Defense Federal Acquisition Regulation Supplement 252.232.7014, NOTIFICATION OF PAYMENT IN LOCAL CURRENCY (AFGHANISTAN) (SEP 2014)).  2. Sweet Star emailed the Army contracting team on October 22, 2018, stating it successfully delivered the items to Bagram Airfield and requesting payment (R4, tab 6 at 1). Sweet Star attached a “Delivery Ticket,” which was the list of items for which it sought payment (R4, tab 7). Upon inspection on October 23, 2018, the Army found the majority of the items listed on the “Delivery Ticket” were either incorrect; incorrect and not a suitable substitution; an incorrect quantity; not compatible; or missing (R4, tab 9, tab 10 at 1, tab 15). 3. Sweet Star emailed the Army several times seeking payment (see e.g., R4, tab 8 at 1, tab 10 at 1). On October 24, 2018, the contracting officer informed Sweet Star that the person who signed for the delivery was not authorized to accept the items. Further, the contracting officer explained there were some issues with the items so the customer “wouldn’t be able to accept the invoice . . . until those issues [were] rectified.” (R4, tab 10 at 1) 4. On October 31, 2018, the Army again notified Sweet Star that some of the items were missing, damaged, or non-conforming. The Army asked Sweet Star about a process for returning the unsuitable items. (R4, tab 16 at 2) 5. On November 6, 2018, Sweet Star emailed the Army about the return of the items and delivery of missing items (R4, tab 16 at 1-2). On November 17, 2018, the contracting officer sent Sweet Star a cure notice (R4, tabs 17-18). According to the notice, Sweet Star delivered the items almost a month late and numerous items were incorrect, damaged, or missing. The contracting officer gave Sweet Star 10 days to correct all the deficiencies and retrieve the rejected shipment or the Army would terminate the contract for cause. (R4, tab 18 at 1) 6. On December 7, 2018, the contracting officer told Sweet Star that the Army would not keep unsuitable items or unsuitable substitutes. However, the contracting officer stated that Sweet Star was not responsible for any missing items because a government representative attested that all items were accounted for upon delivery. The contracting officer asked for an address in which it could ship the items back to Sweet Star. The contracting officer instructed Sweet Star to adjust its invoice to 5,795,103.69 AFN. Sweet Star provided an address on December 8, 2018. (R4, tab 33 at 1) 7. On December 10, 2018, the Army issued a modification (which noted it required Sweet Star’s signature but the file contains no signed modification). The modification decreased the total price for contract line item number 0001 from 12,985,439.13 AFN ($188,194.77) to 5,795,103.69 AFN ($83,987.01) (a decrease of 7,190,335.44 AFN ($104,207.76)). The purpose of the modification was to “deobligate the funding that represent[ed] the total for the items that were returned to 2 the customer.” (R4, tab 35 at 1) In December 2018, the Army approved some payment be made to Sweet Star (R4, tab 38). 8. On January 8, 2019, the Army asked Sweet Star how it wanted to retrieve the rejected items. Sweet Start stated it would not take the items because it had tried to retrieve them previously but now it was too late to dispose of them. (R4, tab 43 at 1) 9. By email dated January 11, 2019, the contracting officer notified Sweet Star it had until January 24, 2019 to collect all non-conforming contract items as the Army would not deliver them to Sweet Star. After January 24, 2019, any non-conforming items that Sweet Star had not collected would be considered “abandoned,” leaving the government to dispose of the items per agency procedures. (R4, tab 45 at 1) Sweet Star failed to collect its non-conforming contract items by January 24, 2019, but blamed the Army for failure to coordinate (see R4, tab 49 at 1). 10. On March 25, 2019, Sweet Star emailed the Army, including the contracting officer, stating that it received only 45 percent payment on the contract and seeking payment for the remaining materials for which it had not been paid and were still in the Army’s possession. Sweet Star further stated it was its “Final Notice,” and asked the Army to finalize its decision concerning the materials for which it had not been paid or it would appeal to the Board. The request for payment did not include a sum certain, nor did the request contain the claim certification set forth at 41 U.S.C. § 7103(b)(1). (R4, tab 57 at 1) 11. The Army considered Sweet Star’s March 25, 2019 email to be a claim for over $100,000. On May 16, 2019, the Army contracting officer instructed Sweet Star to certify its purported claim. The Army specifically told Sweet Star it must certify the following: the claim is made in good faith; the support data are accurate and complete to the best of the contractor’s knowledge and belief; the amount requested accurately reflects the contract adjustment for which the contractor believes the government is liable; and the certifier is authorized to certify on behalf of the contractor. (R4, tab 59) 12. On May 18, 2019, the contracting officer issued a final decision (COFD) denying Sweet Star’s claim, in part (R4, tab 60, tab 61 at 1, 3). The contracting officer stated the Army paid Sweet Star for all items it accepted and any missing items. The Army did not pay Sweet Star 7,190,335.44 AFN ($104,207.76), which was the amount by which the Army had decreased the contract via a modification. (R4, tab 61 at 2) Further, according to the contracting officer, Sweet Star never arranged to retrieve the nonconforming items in the Army’s possession and the Army had no evidence that Sweet Star attempted to coordinate retrieval. The contracting officer concluded that Sweet Star’s request for payment was for the $104,207.76, but that the Army only owed 29,849.40 AFN ($432.60) for certain items and denied the remaining balance of 7,160,486.04 AFN ($103,775.16). (Id. at 2-3) The contracting officer also explained 3 that since Sweet Star’s claim was over $100,000, it had been instructed to certify the claim “but failed to do so” (id. at 3). 13. The next day, Sweet Star emailed the contracting officer stating it never filed a claim and asked questions about how to pick up the materials. The contracting officer explained that no one can enter Bagram Airfield without an escort and that all Sweet Star had to do was contact the designated individual (not the customer) as instructed and that person could have coordinated pick-up. (R4, tab 62 at 1) 14. On May 20, 2019, Sweet Star complained about not being paid for the material still in the Army’s possession. Sweet Star asked how to file a claim. In response, the contracting officer directed Sweet Star to the ASBCA’s website. (R4, tab 63 at 1) 15. By email dated May 23, 2019, Sweet Star filed a notice of appeal to the Board, which the Board docketed as ASBCA No. 62082. Ultimately, on September 30, 2020, the Board dismissed the appeal for lack of jurisdiction, holding there was an inadequate notice of the basis of the claim and amount in Sweet Star’s request, and thus there was no claim. Sweet Star Logistic Serv., ASBCA No. 62082, 20-1 BCA ¶ 37,704 at 183,046. In a footnote, the Board explained that if Sweet Star resubmits its claim, it should ensure there is a sum certain and certification (if the amount requested exceeded $100,000) which the Board included in the decision. Id. at 183,046 n.2. 16. Soon thereafter, on October 2, 2020, Sweet Star filed a document with the Board, which the Board treated as a motion for reconsideration. Sweet Star Logistic Serv., ASBCA No. 62082, 21-1 BCA ¶ 37,773 at 183,343. The Board noted that “[r]ather than submitting a new claim to the contracting officer (CO), with a sum certain, certified if over $100,000 as also required by the [Contract Disputes Act (CDA)],” Sweet Star filed this document with the Board “complaining about the dismissal of its claim, but not offering any additional information or demonstrating that our decision was somehow improper.” Id. The Board affirmed its prior dismissal of Sweet Star’s appeal for lack of jurisdiction. Id. The Board specifically provided the following instruction: “Should appellant wish to pursue a claim, it must submit a claim to the CO with a sum certain, and certified if it exceeds $100,000.” Id. 17. Sweet Star next filed two emails with the Board, on January 1 and January 19, 2021, which the Board deemed to constitute a second motion for reconsideration. Sweet Star, ASBCA No. 62082, 21-1 BCA ¶ 37,827 at 183,704. The Board denied the motion as our rules do not allow for a second motion for reconsideration. Id. Further, the Board instructed its Recorder’s Office to not accept any other filings related to the appeal. Id. 4  18. In the January 1, 2021 email to the Board, Sweet Star requested a lawyer. The Board explained it does not provide lawyers to parties. (App. br., tab 2 at 1-2) 19. On July 5, 2021, Sweet Star emailed several individuals at the Army (one email address included the contracting officer’s name) asking for the materials to be returned or to be paid for them (app. br., tab 3 at 1). Sweet Star attached its ASBCA appeal to the email (id. at 1-3). On July 7, 2021, an individual from the Army emailed Sweet Star and copied others from the Army asking if someone could look into the matter, and noting the specific individual who was the contracting officer for this contract (Ms. Mulvaney) (id. at 4). Over the next two weeks, Sweet Star and the individual from the Army exchanged emails, with the Army stating the ASBCA denied the appeal and that Sweet Star should talk to someone in Afghanistan about the matter (id. at 5-11). Ms. Mulvaney was copied on the emails (id. at 4-11). 20. On September 3, 2022, Sweet Star contacted a private sector attorney seeking representation for its claim (app. br., tab 4). Sweet Star also submitted a petition for a special immigration visa to the Department of State on September 14, 2022 (app. br., tab 5 at 10-11). 21. Sweet Star submitted a renewed “claim” on July 8, 2025 seeking $104,207.76, which included certification language. Sweet Star explained the “claim pertains to a dispute arising from the reduction in payment for goods delivered under the contract, specifically those items that were allegedly damaged, missing, or deemed non-conforming.” Sweet Star submitted the claim to two different email addresses for Ms. Mulvaney. (App. br., tab 6 at 1) There is nothing in the record showing the Army or Ms. Mulvaney responded. 22. On January 3, 2026, Sweet Star filed a claim with the contracting officer, which included certification language, seeking 7,198,691.37 AFN for materials delivered (R4, tab 66 at 1, 3). On January 28, 2026, Sweet Star filed a corrected, claim with certified language seeking $104,209.26, and arguing the government retained goods after delivery and failed to pay for them (app. br., tab 9 at 2-3). On January 30, 2026, the contracting officer told Sweet Star that its legal staff was reviewing the email and documents (id. at 7). On April 7, 2026, Sweet Star filed its appeal with the Board on a deemed denial of its claim. DECISION The contract incorporated by reference the disputes clause, which explained the contract was subject to the CDA (SOF ¶ 1; FAR 52.233-1(a)). As relevant here, the CDA states that each contractor claim must be submitted within six years of claim accrual. 41 U.S.C. § 7103(a)(4)(A); see also FAR 52.233-1(d)(1); FAR 33.206(a). A claim accrues “when all events[] that fix the alleged liability of either the Government 5 or the contractor and permit assertion of the claim, were known or should have been known.” FAR 33.201. The Army moves for summary judgment arguing that there is no genuine issue of material fact that Sweet Star submitted its January 28, 2026 claim more than six years after it accrued (gov’t mot. at 1). 2 According to the Army, the claim accrued at the latest on December 10, 2018 when the Army issued a modification decreasing the total contract price and, as the Army states, establishing it would not pay Sweet Star for the nonconforming supplies (id. at 11; see SOF ¶ 7). The Army also contends the claim actually accrued as early as October 24, 2018, when the contracting officer told Sweet Star there were issues with the delivered items and the Army would not pay for the full shipment (gov’t mot. at 12). In its initial brief, Sweet Star stated this appeal (and thus the underlying claim) “concerns the same underlying contractual dispute that has existed since 2018” (app. br. at 15). In its reply brief, it argues the claim did not accrue in December 2018 because the government did not establish Sweet Star received the modification (app. reply at 4; app. sur-reply at 1). Sweet Star also argues that the claim did not accrue in December 2018 because the parties were engaged in an ongoing dispute and the Army controlled the disposition of the material (app. sur-reply at 1-2). The facts show that on October 24, 2018, the contracting officer told Sweet Star there were issues with the items delivered and the customer would not accept Sweet Star’s invoice until it rectified those issues (SOF ¶ 3). Then, on December 7, 2018, the contracting officer told Sweet Star that the Army would not keep unsuitable items or unsuitable substitutes and instructed Sweet Star to adjust its invoice to 5,795,103.68 AFN (SOF ¶ 6). This adjusted amount is equal to the adjusted amount on the modification (see SOF ¶¶ 6-7). Thus, even if Sweet Star did not receive a copy of the modification, it knew the issues and an amount in dispute. In fact, with this information, Sweet Star was able to complain to the contracting officer about nonpayment and file an appeal with the Board (SOF ¶¶ 10, 15-16). Ultimately, the contracting officer issued a final decision (SOF ¶ 12), and there were ongoing exchanges with Army personnel on the matter (see SOF ¶¶ 19, 21); however, the Army’s position regarding nonpayment did not change. We will grant summary judgment only if “there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citation omitted). As even Sweet Star admits, by 2018, Sweet Star knew the facts underlying the dispute. We conclude the 2 The Board also sua sponte raised the issue of whether, pursuant to 41 U.S.C. § 7103(a)(4)(A), Sweet Star submitted its claim within six years of claim accrual. Bd. Order dtd. Jul 29, 2026. 6 claim accrued by October 24, 2018 when Sweet Star knew the Army would not pay for nonconforming goods and knew the unpaid amount (even if later it changed slightly). Sweet Star therefore was to have filed its claim by October 24, 2024. See Afghan Premier Logistics, ASBCA No. 62938 et al., 23-1 BCA ¶ 38,373 at 186,404 (denying motion for reconsideration and explaining that “for the claim to accrue it is sufficient for the claimant to know it was wronged and has a cause of action against the government, not necessarily having all the details nailed down”); Watts Constructors, LLC, ASBCA No. 63753, 25-1 BCA ¶ 38,938 at 189,514-15, mot. recons. den., 26-1 BCA ¶ 38,981 (explaining that a contractor knew or should have known it suffered some injury at the time a modification was issued but the claim could have accrued earlier). By its own admission, Sweet Start did not file a certified claim that included a sum certain with the contracting officer until January 2026 (SOF ¶ 22; see also app. br. at 5). Thus, it filed its claim over six years (and more than seven years) after it accrued. 3 The CDA’s statute of limitations is not jurisdictional, and is subject to equitable tolling. Sikorsky Aircraft Corp. v. United States, 773 F.3d 1315, 1322 (Fed. Cir. 2014). The Board has held that the CDA’s six-year statute of limitations “may be equitably tolled when a litigant has (1) been pursuing his rights diligently, and (2) some extraordinary circumstance ‘stood in his way and prevented timely filing.”’ The Adamant Grp. for Contracting and Gen. Trading, ASBCA No. 60316, 16-1 BCA ¶ 36,577 at 178,136 (quoting Menominee Indian Tribe of Wis. v. United States, 577 U.S. 250, 255 (2016)); see also Kamaludin Slyman CSC, ASBCA No. 62006 et al., 21-1 BCA ¶ 37,849 at 183,794). For the first prong, the Board will determine whether there was “‘reasonable diligence,’ not ‘maximum feasible diligence.’” Kamaludin Slyman CSC, 21-1 BCA ¶ 37,849 at 183,794 (quoting Holland v. Florida, 560 U.S. 631, 653 (2010)). For the second prong, the Board will look at whether the litigant’s delay was both extraordinary (i.e., whether critical information was undiscoverable) and beyond the litigant’s control. Id. at 183,794-95 (citations omitted). Sweet Star claims it was diligent in its pursuit regarding the filing of its claim because it continued to seek administrative relief through the Board; worked with the 3 Sweet Star submitted a “claim” on July 8, 2025 seeking $104,207.76, which included certification language (SOF ¶ 21). Even if we considered this to be a claim (despite Sweet Star not arguing this fact and never appealing it), this “claim” was still submitted more than six years after it accrued. Further, even if we concluded the claim accrued on December 7, 2018, when the contracting officer told Sweet Star that the Army would not keep unsuitable items/substitutes and instructed Sweet Star to adjust its invoice (SOF ¶ 6), Sweet Star still filed the claim late. 7 United States special immigrant visa program, and submitted an application to relocate, dated September 14, 2022; attempted to retain legal counsel in September 2022 to prepare the claim; and continued (starting in 2021) searching for the responsible contracting officer (noting that many government email addresses became inactive) (app. br. at 3-5, 11, tab 3-5). Sweet Star explains that it used SAM.gov to locate the contracting officer (app. br. at 14). Finally, in January 2026, Sweet Star states it was able to transmit its claim to several contracting officials and one of them forwarded the claim to the responsible contracting officer (id.). Sweet Star also argues it faced extraordinary circumstances beyond its control which caused the delay. First, Sweet Star explains it is not an attorney and was not represented by counsel when it filed the initial claim and English is not the owner’s first language (app. br. at 9, 12). Second, Sweet Star argues that the withdrawal of the United States from Afghanistan in August 2021 caused disruptions to its business (id. br. at 3). Specifically, Sweet Star explains that as an Afghan contractor that had supported the United States military, it was forced to leave the company’s office (after company records were lost) and family residence (where private property was taken) due to security threats (id. at 3, 5). In response, the Army argues there was nothing preventing Sweet Star from filing a certified claim on time. Specifically, the Army argues that Sweet Star retained access to its business email accounts and used those accounts to repeatedly send communications to the Army, Department of State and one attorney after the Taliban’s takeover of Afghanistan; and had almost three years to submit its claim before the Taliban’s takeover (gov’t mot. at 11-12, 15, 19-20). Further, as the Army notes, Sweet Star was able to submit a “claim” in March 2019, and then appeal to the Board (id. at 16). At that point, both the Army and Board provided specific instructions on certain key ingredients to a claim (certification and sum certain) (id.). Instead, Sweet Star filed additional emails with the Board and then did not attempt to file another claim until too late (id. at 16-17). As noted, the contract included the disputes clause, which defines a claim and sets forth the exact certification required if the amount requested is over $100,000 (SOF ¶ 1; FAR 52.233-1(c), (d)). The clause also explains that claims must be submitted in writing to a contracting officer within six years of accrual. FAR 52.233-1(d)(1). The record shows that on March 25, 2019, Sweet Star emailed the contracting officer complaining it did not receive the entire contract amount and that the remaining materials for which it had not been paid were still in the Army’s possession (SOF ¶ 10). The Army considered Sweet Star’s March 25, 2019 email to be a claim for over $100,000 and thus on May 16, 2019, the Army contracting officer instructed Sweet Star to certify its purported claim and provided it the exact certification language to 8 use (SOF ¶ 11). Later, Sweet Star appealed to the Board, and on September 30, 2020, the Board dismissed the appeal for lack of jurisdiction, holding there was an inadequate notice of the basis of the claim and amount in Sweet Star’s request, and thus there was no claim. Sweet Star, ASBCA No. 62082, 20-1 BCA ¶ 37,704 at 183,046. The Board specifically explained that if Sweet Star resubmitted its claim, it should ensure there is a sum certain and certification (if the amount requested exceeded $100,000). Id. at 183,046 n.2. Rather than heed either the Board’s or contracting officer’s guidance and submit a claim with a certification and sum certain, Sweet Star decided to email the Board requests for reconsideration (SOF ¶¶ 16-17). See also Sweet Star, ASBCA No. 62082, 21-1 BCA ¶ 37,773. Again, the Board provided specific instructions that if Sweet Star wished to pursue a claim, it must submit it to the contracting officer with a sum certain, and certification if it exceeded $100,000 (SOF ¶ 16). See Sweet Star, ASBCA No. 62082, 21-1 BCA ¶ 37,773. In addition, rather than file a claim per the Board’s or contracting officer’s instructions, on July 5, 2021 Sweet Star emailed the Army asking for the materials to be returned or for the Army to pay for them (SOF ¶ 19). Over the next two weeks, Sweet Star and the Army exchanged emails, with the Army stating the ASBCA denied the appeal and that Sweet Star should talk to someone in Afghanistan about the matter (id.). Much later, on September 3, 2022, Sweet Star contacted an attorney about its claim and also submitted a petition for special immigration classification to the Department of State on September 14, 2022 (SOF ¶ 20). Thus, before the withdrawal of the United States from Afghanistan in August 2021 caused disruptions to its business, Sweet Star was able to file a purported claim; file an appeal with the Board; email the Army, Army contracting officer, and Board; and seek counsel about its claim; but somehow, Sweet Star was unable to file a claim (see SOF ¶¶ 15-20). Sweet Star was also able to apply for a special visa to the Department of State (SOF ¶ 20). Sweet Star did not pursue its rights diligently and nothing stood in its way or prevented timely filing. Sweet Star knew the issues and how much it sought, and was instructed several times on how to file a claim. See Platinum Servs., Inc., ASBCA Nos. 62199, 62200, 24-1 BCA ¶ 38,643 at 187,859 (finding no equitable tolling of the six-year limitations period where contracts set forth what appellant must do to preserve its claims, and appellant failed to do it). Ignoring such instruction is not diligent pursuit. Sweet Star then waited over four years to attempt contact with the Army again (SOF ¶ 21) and file a claim (SOF ¶ 22). As Sweet Star admits, even now with the Taliban in Afghanistan, it was able to file a claim and this appeal. Sweet Star’s actions do not evidence reasonable diligence. Furthermore, all information regarding the claim was readily available to Sweet Star (the claim information, email addresses, 9 SAM.gov, etc.), and there is no evidence the delay was beyond Sweet Star’s control. Sweet Star cannot demonstrate either element of equitable tolling. Finally, Sweet Star makes several pleas regarding the fact it is pro se and has limited English (app. br. at 9, 12). As the Board has stated before, “[a]lthough pro se litigants are generally afforded a degree of leniency with regard to administrative matters and pleadings, they are not exempt from otherwise complying with legal requirements.” CLC Constr. Co., ASBCA No. 59110, 20-1 BCA ¶ 37,584 at 182,497 n.8 (citations omitted); see also Elham Ahmadi Constr. Co., ASBCA No. 61031, 17-1 BCA ¶ 36,861 at 179,604 (“The fact that appellant is a pro se, non-United States contractor, whose personnel are likely to be unfamiliar with government contract law and have limited English speaking and writing abilities does not excuse the failure to comply with jurisdictional prerequisites.”). Sweet Star has shown that even though it is pro se, it was able to file more than one claim with the contracting officer, appeal to the Board, contact an attorney for assistance, apply for a special U.S. visa, and, as it admits, use SAM.gov to find contracting personnel. CONCLUSION We grant the Army’s motion for summary judgment. Dated: October 23, 2026 LAURA EYESTER Administrative Judge Armed Services Board of Contract Appeals I concur I concur J. REID PROUTY MICHAEL N. O’CONNELL Administrative Judge Administrative Judge Acting Chairman Vice Chairman Armed Services Board Armed Services Board of Contract Appeals of Contract Appeals 10  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. 64505, Appeal of Sweet Star, rendered in conformance with the Board’s Charter. Dated: October 23, 2026 PAULLA K. GATES-LEWIS Recorder, Armed Services Board of Contract Appeals 11