ASBCA 58659

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Leviathan Corporation ) ASBCA No. 58659 ) Under Contract No. DAB VO 1-03-D-OOO 1 ) APPEARANCES FOR THE APPELLANT: David S. Black, Esq. Gregory R. Hallmark, Esq. Holland & Knight LLP Tysons Comer, VA APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney CPT Jessica E. Edgell, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE O'CONNELL ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION This matter is before us on the government's motion to dismiss for lack of jurisdiction. We deny the motion. STATEMENT OF FACTS FOR PURPOSES OF THE MOTION This appeal involves a contract awarded by the Coalition Provisional Authority (CPA) in Iraq to appellant's predecessor, Trident International, dated 29 October 2003 (R4, tabs 1, 4, 52). The Rule 4 file contains only a barely legible copy of the first page of the contract. A contracting officer for the United States Air Force signed the contract and issued six delivery orders (R4, tabs 52-57). Appellant fulfilled its duties under the contract, delivering various items of clothing that were accepted by United States military personnel (see id. and tab 3 7). On 28 June 2004, the CPA dissolved and transferred power to the Iraqi Interim Government. On 30 January 2005, the same date elections were held to choose representatives for the newly formed Iraqi National Assembly, power transferred to the Iraqi Transitional Government. The Iraqi people ratified the Constitution of Iraq by a referendum on 15 October 2005, and on 20 May 2006 the permanent Iraqi government took office. Harris v. Kellogg, Brown & Root Services, Inc., 796 F. Supp. 2d 642, 649 (W.D. Penn. 2011) (citing Kalasho v. Republic of Iraq, 2007 WL 2683553, at *6 (E.D. Mich., Sept. 7, 2007)). The government has provided us with a grant of authority by Ali Abdul Amir Allawi, Iraq Minister of Finance, dated 24 December 2005 that extended administration by the Commander, Multi-National Force-Iraq (MNF-I), of contracts funded by the Development Fund for Iraq* (DFI) until 31 December 2006 (gov't mot., ex. 7). At some point, appellant began experiencing difficulties in obtaining payment for the furnished goods. On 13 November 2006, appellant emailed a Defense Contract Management Agency contracting officer, LT Paul Fox, USN, requesting help in obtaining payment (R4, tab 9). LT Fox analyzed the problem and calculated that the difference between the value of delivered goods and payments documented in the file was $1,221,701.41 (R4, tab 10 at 23-25). In an email to appellant on 25 November 2006, LT Fox observed that "US Government administration" of CPA contracts would end on 31 December 2006 and stated that he was enclosing a "settlement modification." He further stated "This is the final offer I can make on behalf of both the Iraqi and US Governments." (R4, tab 9) This Modification, No. A00002, provided for "payment of $254,903.92 to be made by the Government of Iraq utilizing [DFI] funds" (R4, tab 6 at 14). The modification went on to state that it "constitutes a full release and accord between Trident International (DBA: Leviathan Corporation), the Government of Iraq, and the United States Government." It further stated that no "future deliveries against these delivery orders [will] be accepted by the Government of Iraq and the United States Government." Finally, it stated that upon execution of the modification, the Joint Contracting Command-Iraq would forward a final payment package to "the payment office." (Id.) At his deposition, now LCDR Fox testified that after execution of the modification, he submitted the payment package to the MNF-I Finance Office, which certified the payment and forwarded it to the Iraqi Ministry of Finance (R4, tab 79 at 27). For reasons that are not clear, appellant did not receive payment. For nearly five years appellant inquired about the payment with constantly changing government personnel to no avail.