White Hand Company, LLC ( 2015 )

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:
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• 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. The I-CERP Final Government of Iraq
Closure Letter stated:
Signing of this document signifies final closure of the
enclosed project, relinquishes further responsibility from
Coalition Forces and represents receipt of responsibility for
further operating and maintenance costs to the Government
of Iraq.
(Gov't mot., ex. 7) The document was signed by the Deputy Director General of
Health on behalf of the Government of Iraq.
DECISION
We have previously held that we have no jurisdiction to decide disputes arising
under CERP contracts which, even though funded with United States Government
appropriated funds, are for the direct benefit of the indigenous population of Iraq and
Afghanistan. Latifi Shagiwall Construction Co., ASBCA No. 58872, 15-1 BCA
if 35,937. The evidence before us demonstrates that I-CERP contracts are even further
removed from our jurisdiction as they are contracts funded entirely by the Iraqi
Government for the direct benefit of the Iraqi people. The only involvement of the
United States Government in an I-CERP contract is to act as the agent of the Iraqi
Government in issuing the Iraqi-funded contracts and administering them to ensure
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that the contract is performed as required by its terms. There is no evidence that the
1-CERP contract now at issue provides any remedy to the contractor that obligates the
United States Government or its funds, nor is there any provision which creates
jurisdiction for this Board to adjudicate disputes under the 1-CERP contract.
The government's motion to dismiss for lack of jurisdiction is granted.
Dated: 2 June 2015
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DIANA S. DICKINSON
Administrative Judge
Armed Services Board
of Contract Appeals
I concur
RICHARD SHACKLEFORD
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 59184, Appeal of White
Hand Company, LLC, rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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