ASBCA 58872

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Latifi Shagiwall Construction Company ) ASBCA No. 58872 ) Under Contract No. W91B4K-09-C-RP19 ) APPEARANCE FOR THE APPELLANT: Mr. Abdul Khalil Latifi Director t APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney CPT Harry M. Parent, JA I I MAJ John R. Longley, JA Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE DICKINSON ON THE GOVERNMENT'S AMENDED MOTION TO DISMISS FOR LACK OF JURISDICTION Appellant Latifi Shagiwall Construction Company (LSCC) seeks a total of $887,496 for three claims arising under Contract No. W91B4K-09-C-RP19. The government moves to dismiss the appeal for lack of jurisdiction on the basis of three alleged jurisdictional defects. Appellant opposes the motion. We grant the government's motion and dismiss the appeal for lack of jurisdiction. STATEMENT OF FACTS CSOF) FOR PURPOSES OF THE MOTION 1. Contract No. W91B4K-09-C-RP19 was awarded to LSCC on 7 April 2009 for $1, 135,457 .15 to design and build a gravel road 8.5 kilometers long near the Valley of Pashagar, Nurgaram District, Nuristan Province, Afghanistan. The contract was awarded under the Commanders' Emergency Response Program (CERP), Purchase Request No. CERPJAF9F00142. (R4, tab 1) 2. The CERP is the successor of a program of humanitarian expenditures originally established by the Administrator of the Coalition Provisional Authority (CPA) expressly for the benefit of the Iraqi people and funded with Development Fund for Iraq (DFI) funds (R4, tab 51 [National Defense Authorization Act for Fiscal Year 2006 (NDAA FY06), Pub. L. No. 109-163, § 1202(e), 119. Stat. 3136, 3456 (2006)]; t see also http://www.iraqcoalition.org/regulations/, Regulation 2). Upon dissolution of f I the CPA on 28 June 2004 1, the CERP was established and funded with United States Government appropriated funds for the purpose of enabling United States military commanders in Iraq to respond to urgent humanitarian relief and reconstruction requirements within their areas of responsibility by carrying out programs to immediately assist the Iraqi people (R4, tab 51 ). 2 No later than December 2008 the CERP also funded humanitarian and reconstruction efforts for the benefit of the people of Afghanistan (R4, tab 50). 3. Congress expressed its intent that the CERP program was to be executed with a minimum of administrative functions (see H.R. Rep. No. 108-622 at 381 (2004)) and delegated significant authority to the Department of Defense (DoD) to craft regulations and procedures to exercise its CERP authority. Section 1201 of the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005 granted the Secretary of Defense the authority to "waive any provision of law ... that would (but for the waiver) prohibit, restrict, limit, or otherwise constrain the exercise of that authority." Pub. L. No. 108-375, § 1201(c), 118 Stat. 1811, 2078 (2004). This waiver authority has been continually extended to the present. See, e.g., National Defense Authorization Act for Fiscal Year 2006, Pub. L. No. 109-163, § 1202(d), 119 Stat. 3136, 3456; Duncan Hunter National Defense Authorization Act for Fiscal Year 2009, Pub. L. No. 110-417, § 1214, 122 Stat. 4356, 4630 (2008); National Defense Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, § 120l(d), 125 Stat. 1298, 1620 (2011); National Defense Authorization Act for Fiscal Year 2014, Pub. L. No. 113-66, § 1211, 127 Stat. 672, 904-05 (2013). Further the Conference Report on the Fiscal Year 2005 authorization provided: It is the understanding of the conferees that the CERP program is currently being implemented pursuant to the guidance issued by the [Under Secretary of Defense] Comptroller on July 27, 2005. H.R. Rep. No. 109-360 at 799 (2005).