ASBCA 59822

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Big Iraqi Company ) ASBCA No. 59822 ) Under Contract No. 000000-00-0-0000 ) APPEARANCE FOR THE APPELLANT: Gen. Sorih Hani Owner/General Manager APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney MAJ M. Aaron Lee, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE DELMAN ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION The Department of the Army (government) has filed a motion to dismiss this appeal for lack of jurisdiction. Big Iraqi Company (appellant) has filed in opposition to the government's motion. STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 1. On 15 August 2007, appellant signed a Memorandum of Agreement (MOA) with the government (R4, tab 1). The Statement of Work (SOW) for this MOA required appellant to provide and set up 26 trailers for use as temporary classrooms in the village of Al Awad, Iraq, and also to provide 4 trailers for use as latrines as well as related equipment (R4, tab 2). The MOA was written on the letterhead of the "Department of the Army, Headquarters, pt Brigade, pt Cavalry Division, Camp Taji, Taji Iraq, APO AE 09376" (R4, tab 1). 2. The MOA was signed on behalf of appellant by Sorih Hani and on behalf of the government by CPT Gordon Bouchard as "Project Purchasing Officer" (PPO). The MOA also identified Project Officer MAJ Edgar Bowdish as the government's point of contact. (R4, tab 1)  3. The MOA was one page in length and contained the following terms of the agreement: A. The work will be completed within the time specified and in accordance with the guidelines specified in the Statement of Work (dated 10 August 2007). B. Contractor agrees to complete the project for the amount stated in the bid ($1,669,500.00). C. All supplies will be new, not used. D. Contractor will work with the Project Officer, MAJ Bowdish, or his representative to ensure the setup location is positively identified before beginning any work. E. This agreement will not become effective until funding is approved and the contractor is notified by the Project Officer to begin work. F. Payment will be in U.S. Currency (cash) at time of delivery. Payments will only be made for goods and services received. G. Delivery location for all supplies will be the work site. (R4, tab 1) 4. The record contains a Declaration from then MAJ (now LTC) Bowdish. Insofar as pertinent, the Declaration states that this MOA was awarded under the Commanders' Emergency Response Program (CERP), and that the trailers were to be used as a temporary school for Iraqi children. (R4, tab 8) In response, appellant asserts (correctly) that the MOA did not reference or identify the agreement as a CERP project, and therefore it did not enter the MOA with the understanding that it was a CERP project (app. resp. at 6). Nevertheless, appellant does not contest the purpose of the MOA, i.e., to provide a temporary school for Iraqi children in the village of Al Awad, nor does it provide any evidence suggesting that these trailers were for the direct benefit or use of the United States. 5. On 8 September 2007, appellant was issued a Notice to Begin Work (R4, tab 3). On 3 November 2007, CPT Bouchard signed a Memorandum for Record indicating that the government had accepted the work and that appellant was entitled to full payment (R4, tab 4). According to the government, appellant was paid the full amount specified in the MOA (R4, tab 8, Bowdish decl. ~ 3). According to appellant, it has never beefi paid the amount specified in the MOA. 6.