ASBCA Appeals: Former Employee Could Not Represent Contractor

A former employee could not represent a contractor in an appeal filed with the Armed Services Board of Contract Appeals, even though the contractor’s owner had asked the former employee to serve as its representative.

In a recent decision, the ASBCA reiterated that, under its rules, a corporation must be represented by an officer or an attorney.  A former employee does not qualify.

The ASBCA’s ruling in Smart Construction & Engineering Co., ASBCA No. 59354 (2015) involved a claim filed by Smart Construction & Engineering Co.  The claim, in the amount of $189,822.08, was accompanied by a claim certification signed by “Manager, Tracey Grooms.”  The Contracting Officer denied the claim, and Smart Construction appealed.

The government filed a motion to dismiss, challenging whether Tracey Grooms met the requirements to represent Smart Construction in its appeal.  A series of confusing declarations were then filed with the Board.  One owner of Smart Construction referred to “Mr. Tracey Grooms” as a former employee of the company, and not an officer.  A declaration by another Smart Construction owner stated that he had authorized “Mrs. Tracey Grooms” to work on the appeal on Smart Construction’s behalf.  Tracy Grooms himself (apparently male, and with no “e” in his name) filed a declaration stating that he was a former employee of Smart Construction, but had not signed the claim certification or otherwise participated in the appeal.

Although Smart Construction’s owners apparently differed over Mr. Groom’s gender, none of the three declarations stated that Mr. Grooms was an officer (or even a current employee) of Smart Construction.  Thus, the ASBCA found, “[t]hese declarations demonstrate, and we find, that neither Tracey Grooms nor Tracy Groom is a corporate office of appellant, and that no person by either name has been employed by appellant since 2010, much less as a corporate officer.”

The ASBCA referred to ASBCA Rule 15(a), which states:

An individual appellant may represent his or her interests before the Board; a corporation may be represented by one of its officers; and a partnership or joint venture by one of its members; or any of these by an attorney at law duly licensed in any state, commonwealth, territory, the District of Columbia, or in a foreign country. Anyone representing an appellant shall file a written notice of appearance with the Board.

Under the rule, a corporation like Smart Construction must be represented by an officer or an attorney.  No one else is authorized to represent a contractor in an ASBCA appeal.  Because Mr. Grooms was not an officer, nor an attorney, the ASBCA dismissed Smart Construction’s appeal (although it granted Smart Construction the right to reinstate its appeal upon entering the appearance of a person authorized to represent the company).

Most contractors will not seek out former employees to represent them in ASBCA appeals.  However, the rule discussed in the Smart Construction case goes beyond former employees.  Under the rule, a contractor’s current employees (who are not officers) may not represent the contractor at the ASBCA, nor may an outside non-attorney consultant.  As Smart Construction demonstrates, any contractor filing an ASBCA appeal must select an appropriate representative.

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