ASBCA 58425

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) Esood AI Blad Company ) ASBCA No. 58425 ) Under Contract Nos. URI#125128 ) URI#125131 ) URI#125136 ) URI#125139 ) APPEARANCES FOR THE APPELLANT: Mr. Soodad A. Ahmad Managing Partner Mr. Ezhair Hmoodi Manager APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney CPT Nicholes D. Dembinski, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE TUNKS ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION Esood AI Blad Company (appellant) seeks $1,212,000 due to the cancellation of four Memoranda of Agreements (MOAs ). The government moves to dismiss the appeal for lack of jurisdiction, alleging that appellant has not submitted a certified claim as required by the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 and that the MOAs are not contracts within the meaning of the CDA. Appellant opposes dismissal. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. In April2010, CPT Dolph Watts, the Project Purchasing Officer (PPO) for the Commanders' Emergency Response Program (CERP) at Camp Liberty, Iraq, issued four MOAs to appellant to supply equipment for the Taji, Istiqlal, Madain, and Tarmiyha irrigation projects. 1 The MOAs contained substantially identical provisions. 1 The CERP was created by the Emergency Supplemental Appropriations Act for Defense and for the Reconstruction of Iraq and Afghanistan, 2004. Pub. L. No. 08-106; 117 Stat. 1215 § 1110, to enable military commanders to respond to urgent humanitarian relief and reconstruction requirements for the Iraqi people. Commanders were prohibited from using CERP funds to provide a "Direct or indirect benefit to U.S., coalition, or supporting military personnel." DoD 7000.14-R, vol. 12, ch. 27, § 270301.  2. Paragraph 2 of the MOAs provided, in part, as follows: a. The purpose of this project is to provide a wheeled excavator, as per the specifications listed in the SoW [Scope of Work], and a Toyota HILUX Pickup truck and associated filters and training for the Ministry of Water Resources .... c. Cost of the contract is $303,000.00 USD. g. This agreement does not become effective until funding is approved and a Notice To Proceed [NTP] is signed by both parties. ' h. Joint Forces reserve the right to cancel the contract at any time for any reason. In the event this happens, payment will be made for the percentage of work complete. (R4, tabs 1-4) 3. The Scope of Work specified Liebherr excavators (R4, tabs 5-8). 4. CPT Watts issued the Taji MOA on 25 April20IO. Mr. Ezhair Hmoodi, appellant's manager, signed the MOA. (R4, tab I at GOV002) CPT Watts issued the MOAs for the Istiqlal, Madain, and Tarmiyah projects on 29 April20IO (R4, tabs 2-4). The copies of the MOAs in the record were not signed by appellant. However, in other evidence, appellant acknowledges that it signed all four MOAs and we so find. (SOF ~II) 5. CPT Watts issued the NTP for the Taji MOA on 25 April20IO (R4, tab 13 at GOV041). He issued the NTPs for the Madain and Tarmiyah MOAs on 29 April20IO. The NTP for the Istiqlal MOA was issued on 30 April2010. (R4, tabs 9, IO, I2) None of the NTPs in the record bear appellant's signature. 6. The delivery date for the equipment was 5 June 20 I 0 (R4, tab I6 at GOV04 7). 7. Appellant allegedly purchased four Liebherr excavators and four Toyota HILUX pickup trucks from Wahab Technical Supplies (Wahab) on 29 April, I May, and 2 3 May 2010. The invoices stated that the excavators would be delivered to the Port of Basrah in 28 days and that the pickup trucks would be delivered in 14 days. (R4, tabs 11, 13-15) The purchase price was $941,600 ($235,400 for one excavator and one pickup truck).