ASBCA 59743

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) White Hand Company, LLC ) ASBCA No. 59184 ) Under Contract No. 1108-MROC-004 ) APPEARANCE FOR THE APPELLANT: Mr. Haider Zaid Shahata President APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney L TC Mark A. Ries, JA LTC Peter D. DiPaola, JA Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE DICKINSON ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION Appellant White Hand Company, LLC, seeks payment from the United States Government for work done under the Iraqi Commander's Emergency Response Program (I-CERP) Contract No. 1108-MROC-004. The government has moved to dismiss the appeal for lack of jurisdiction. Appellant opposes the motion. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. The contract at issue was awarded by the Mosul Reconstruction Operations Center (MROC) on 10 December 2008 (gov't mot., ex. 5). The MROC and its mission were described by its former Deputy Chief as: 2. The MROC was established in partnership with the Iraqi government to assist the local populous of the Ninevah Province in building civil capacity through the execution of reconstruction projects, which were executed under the [I-CERP]. I-CERP projects involved urgent, small-scale, humanitarian relief, and reconstruction projects and services that would immediately assist the indigenous population and were of a scale that the local population or government could sustain. These projects were solely for the benefit of the Iraqi people and could not be for the direct benefit or the use of the U.S. government  or Coalition Forces. All 1-CERP projects utilized Iraqi Government funds. 3. Concerning these reconstruction projects, the MROC synchronized its efforts in nominating projects with the cognizant Iraqi ministries and Director Generals. The Director Generals would then approve projects and select the contractors. At this point, an 1-CERP Project Purchasing Officer ("PPO") would award the 1-CERP projects to the selected contractors and undertake the administration's projects to ensure the contractors executed them properly. 4. In 1-CERP project number 1108-MROC-004, the MROC sought to repair damage caused to the Al Salaam Hospital by a vehicle-borne improvised explosive device [in order to] enable the restoration of health care service to the residents of Mosul. (Gov't mot., ex. 1, see also gov't mot., exs. 2-5, 8) 2. Specifically, the guidance for purchases under the 1-CERP provides: [1-CERP] funds are government of Iraq (GOI) funds for urgent reconstruction projects to benefit the citizens of Iraq while simultaneously growing and achieving Iraqi military and civil self-sufficiency. 1-CERP uses U.S. procurement and financial systems. GOI allocates 1-CERP funds by province based on population density. 1-CERP rules and guidance: • Prominently feature the new Iraqi flag and use other techniques to associate 1-CERP projects with an Iraqi government that is working to live up to its promise of essential services. Specific uses for 1-CERP include the following: 2  • Health clinics; repair or reconstruction. I-CERP cannot be used for the following: • Projects with a direct or indirect benefit to U.S., coalition, or supporting military personnel. (Gov't mot., ex. 9 at 23-24) 3. There is no provision in the I-CERP contract (gov't mot., ex. 5) or in the I-CERP guidance (gov't mot., ex. 9 at 23-25) that gives the Board jurisdiction to adjudicate disputes under the contract. 4. The project work was considered complete on 18 April 2009 and turned over to the Government of Iraq on that date.