from the Armed Services Board of Contract Appeals in Nos.
57415, 57416, 57417, 57418, 57419, 57420, 57421, 57422,
57423, 57424, 57425, 57426, 57895, 57896, 57897, 57898,
57899, 57900, 57901, 57902, 57903, 57904, 57905, 57906,
57907, Administrative Judge Jack Delman.
Patrick Elwood, Vinson & Elkins LLP, Washington, DC,
argued for appellant. Also represented by Michael Charness,
Joshua Stephen Johnson.
William James Grimaldi, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington,
DC, argued for appellees. Also represented by Chad A.
Readler, Robert E. Kirschman, Jr., Claudia Burke.
Prost, Chief Judge, Lourie and Chen, Circuit Judges.
an appeal from a decision of the Armed Services Board of
Contract Appeals ("Board") dismissing for lack of
jurisdiction. The Board found that the Contract Disputes Act
of 1978 ("CDA"), 41 U.S.C. §§ 7101-7109,
does not provide it with jurisdiction in this case. We agree
and affirm the Board's decision in that regard. The Board
also found that it lacked jurisdiction under its charter.
Because that decision was not made pursuant to the CDA, we
lack jurisdiction to review it. We therefore affirm in part
and dismiss in part.
2003, the United States and its coalition partners created
the Coalition Provisional Authority ("CPA") to rule
in Iraq pending transfer of that authority to a newly
constituted Iraqi government. J.A. 1-2; see id. at
6, 2004, the CPA awarded appellant Agility Logistics Services
Company KSC ("Agility") the contract at issue (the
"Contract"). See J.A. 598-671. Agility's
scope of work under the Contract was to "establish and
operate two distribution center warehouses and staging areas
as part of a supply chain management system supporting the
reconstitution of Iraqi security forces, and for the
reconstruction support of Iraq civil infrastructure."
J.A. 2 (citing J.A. 603). The Contract provided for the
issuance of task orders setting forth specific work required.
Contract also specified that "[t]he obligation under
this contract is made with Iraqi funds, as defined in CPA
Memorandum [No.] 4 . . . . No funds, appropriated or other,
of any Coalition country are or will be obligated under this
contract." J.A. 3-4 (quoting J.A. 670). The CPA's
Memorandum No. 4 defined "Iraqi funds" to include
funds from the Development Fund for Iraq
("DFI").J.A. 340 ¶ 8.
Contract further required Agility to acknowledge the
impending transfer of authority and the CPA's scheduled
[Agility] hereby recognizes that a transfer of authority
(TOA) from the [CPA] to the interim Iraqi Governing Council
is scheduled to take place June 30, 2004. Furthermore,
[Agility] recognizes that upon the TOA on June 30, 2004, or
upon any later TOA date if delayed, the CPA is dissolved. The
CPA, U.S. Government or Coalition Government will not be
liable to the contractor for any performance undertaken after
preparation for the transfer of authority to the Iraqi
Interim Government ("IIG"), the CPA issued
Memorandum No. 15 in mid-June 2004. J.A. 370-71. Memorandum
No. 15 allowed the IIG Minister of Finance to delegate
"responsibility to monitor and confirm performance,
certify and/or make payments, and otherwise administer
contracts or grants funded with monies from the [DFI]."
J.A. 370. The memorandum allowed the IIG to delegate these
responsibilities to the CPA's Program Management Office
("PMO") or, "following the transfer of full
governance authority to the [IIG], the Chief of Mission of
the United States Embassy, Baghdad and/or the Commander of
the Multi-National Force-I." Id.
15, 2004, the IIG Minister of Finance delegated
contract-administration responsibility concerning DFI-funded
contracts to the PMO. J.A. 373a-75a; see id. at 5-6.
The delegation did "not authorize [the PMO] to
terminate, amend, or novate any contracts or grants"
covered by the delegation. J.A. 374a. It further stated:
The powers, privileges, rights and authorities granted to
[the PMO] under this designation may be further delegated.
They shall transfer to the Chief of Mission of the United
States Embassy Baghdad and the Commander of the MultiNational
Force-I on June 30, 2004, both of whom shall also have the
authority to delegate these powers, privileges, rights, and
Id.; see id. at 6.
days later, on June 19, 2004, Task Order No. 3 issued under
the Contract. Unlike the first two task orders, Task Order
No. 3 obligated U.S. funds. J.A. 803.
about June 28, 2004, the CPA dissolved and sovereignty
transferred from the CPA to the IIG. J.A. 5. In accordance
with the IIG Minister of Finance's June 15, 2004
memorandum, the PMO's contract-administration authority
transferred to the Chief of Mission of the United States
Embassy Baghdad and the Commander of the Multi-National
Force-I effective June 30, 2004. J.A. 6-7.
the CPA's dissolution, contract-administration authority
was further delegated to the Project and Contracting Office
("PCO"), a temporary organization within the
Department of Defense that later became part of the
Department of the Army. J.A. 7. On July 24, 2004, the PCO
issued a memorandum providing its understanding of its
authority under the IIG Minister of Finance's June 15,
2004 memorandum, stating:
In accordance with the Ministry of Finance's letter[, ]
dated 15 June 2004, the [PCO] will continue to monitor and
confirm performance, certify and/or make payments, and
otherwise administer contracts or grants financed by [the
DFI] and awarded under the former [CPA]. The delegation
letter does not grant us the authority to award, terminate,
amend, or novate any contracts or grants under that
J.A. 7 (quoting J.A. 458).
task orders issued under the Contract through December 2007.
Of these, Task Order Nos. 3, 6, 9-12, and 14-20
(collectively, the "Task Orders") are at issue in