United States Court of Appeals 

for the Federal Circuit ______________________ 

AGILITY LOGISTICS SERVICES COMPANY KSC,

Appellant

v.

JAMES N. MATTIS, SECRETARY OF DEFENSE, 

RYAN D. MCCARTHY, ACTING SECRETARY OF 

THE ARMY, 

Appellees

______________________ 

2015-1555

______________________ 

Appeal 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.

______________________ 

Decided: April 16, 2018

______________________ 

 JOHN 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 
2 AGILITY LOGISTICS SERVICES v. DEFENSE

represented by CHAD A. READLER, ROBERT E. KIRSCHMAN,

JR., CLAUDIA BURKE. 

______________________ 

Before PROST, Chief Judge, LOURIE and CHEN,

Circuit Judges.

PROST, Chief Judge. 

This is 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. 

BACKGROUND

I 

In 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 318–19.

On June 6, 2004, the CPA awarded appellant Agility 

Logistics Services Company KSC (“Agility”) the contract 

at issue (the “Contract”).1 See J.A. 598–671. Agility’s 

 

1 In its opening brief, Agility purported to be a 

company organized under Kuwaiti law, and it asserted

that the Contract was awarded to Agility under its former 

name, Public Warehousing Company KSC (“PWC”). 

Appellant’s Br. 3 & n.1. After filing the opening brief, 

however, Agility’s counsel notified this court that he had 

since learned that the current name of the entity formerly 
AGILITY LOGISTICS SERVICES v. DEFENSE 3

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. J.A. 604.

The 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

 

known as PWC is actually Agility Public Warehousing 

Company KSCP. ECF No. 18 at 2. We remanded for the 

limited purpose of allowing the Board to determine the 

real party in interest and the impact of that determination on its decision. ECF No. 32 at 4. 

On remand, the Board acknowledged the parties’ 

agreement that “[Agility] has never existed” and clarified 

that “[Agility] is not the contractor.” J.A. 2867. The

Board also confirmed that the identity of the real party in 

interest did not impact its dismissal for lack of jurisdiction. J.A. 2869. But, citing concerns over the application 

of Iraqi law, the Board did not determine whether Agility

Public Warehousing Company KSCP is the real party in 

interest here. J.A. 2868–69.

The government now argues that because the named 

appellant “never existed,” Agility faces additional jurisdictional problems such as lack of standing. See Appellee’s 

Br. 53–57. Because we affirm the Board’s decision on 

other grounds, we do not reach these issues. We continue, 

however, to refer to appellant as Agility throughout this 

opinion.
4 AGILITY LOGISTICS SERVICES v. DEFENSE

funds from the Development Fund for Iraq (“DFI”).2 

J.A. 340 ¶ 8. 

The Contract further required Agility to acknowledge 

the impending transfer of authority and the CPA’s scheduled dissolution: 

[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 the TOA.

J.A. 671.

II

In 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.

 

2 The DFI was a fund administered by the CPA and

composed of various sources, including revenue from sales 

of Iraqi petroleum and natural gas. 
AGILITY LOGISTICS SERVICES v. DEFENSE 5

On June 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 activities further.

Id.; see id. at 6. 

Four 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. 

On or 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.

Following the CPA’s dissolution, contractadministration 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 
6 AGILITY LOGISTICS SERVICES v. DEFENSE

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 delegation.

J.A. 7 (quoting J.A. 458).3

Several 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 this appeal. Each of the Task Orders obligated 

U.S. funds.

III

In September 2010, after a period of negotiations between the parties, a U.S. contracting officer (“CO”) issued 

final decisions regarding each of the Task Orders. The 

CO determined that Agility owed the government almost 

$81 million due to the government’s overpayment. Agility 

appealed all but one of these decisions to the Board. 

Separately, in April 2011, Agility submitted a certified claim to the CO seeking approximately $47 million 

for unpaid fees on the Task Orders. The CO denied the 

claim, and Agility appealed that decision to the Board as 

well. 

The government moved to dismiss the appeals for lack 

of jurisdiction. Agility opposed the motion and argued 

that the Board had jurisdiction under the CDA, or alternatively under the Board’s charter.

 

3 The Joint Contracting CommandIraq/Afghanistan (“JCC”), a U.S. Army component, later 

handled contract-administration responsibilities. 
AGILITY LOGISTICS SERVICES v. DEFENSE 7

The Board rejected Agility’s arguments and dismissed 

the appeals for lack of jurisdiction. J.A. 1–15. The Board 

first observed that its CDA jurisdiction was limited to 

contracts “made by an ‘executive agency.’” J.A. 9 (citing 

41 U.S.C. §§ 7101(8), 7102(a)). Board precedent held that 

the CPA was not an executive agency within the meaning 

of the CDA. Because the CPA undisputedly awarded the 

Contract, and because the Board found that the IIG 

assumed responsibility over the Contract as of the IIG’s 

June 15, 2004 memorandum, the Board determined that 

it would lack CDA jurisdiction absent some showing that 

the Contract was novated or assigned to an executive 

agency. Id. The Board found no evidence of such a novation or assignment. Rather, it found that the government 

acted as a contract administrator, not as a contracting 

party. Id. at 9–10. Thus, the Board concluded that it 

lacked jurisdiction under the CDA. Id. at 11. In a separate discussion, the Board concluded that it lacked jurisdiction under its charter. Id. at 11–12. 

Agility timely appealed. We have jurisdiction under 

28 U.S.C. § 1295(a)(10).

DISCUSSION

Whether the Board has jurisdiction over Agility’s 

claims is a question of law we review de novo. E.g., 

Arnold M. Diamond, Inc. v. Dalton, 25 F.3d 1006, 1010 

(Fed. Cir. 1994).

Contract interpretation is also a question of law we 

review de novo, though we give the Board’s interpretation 

of government contracts careful consideration given its 

considerable experience and expertise. Interstate Gen. 

Gov’t Contractors, Inc. v. Stone, 980 F.2d 1433, 1434 (Fed. 

Cir. 1992). Whether a contract existed between Agility 

and the government is a mixed question of law and fact. 

Estes Express Lines v. United States, 739 F.3d 689, 693 

(Fed. Cir. 2014). And the Board’s fact findings are final 

unless “fraudulent, arbitrary, or capricious,” “so grossly 
8 AGILITY LOGISTICS SERVICES v. DEFENSE

erroneous as to necessarily imply bad faith,” or “not 

supported by substantial evidence.” 41 U.S.C. § 7107(b). 

As it did before the Board, Agility argues that the 

Board had jurisdiction under the CDA and the Board’s 

charter. We address these arguments in turn. 

I 

The CDA applies to contracts “made by an executive 

agency,” 41 U.S.C. § 7102(a), and gives the Board jurisdiction to decide appeals of contracting officer decisions

relating to such contracts, see id. § 7105(e)(1)(A). Therefore, to determine whether the Board had jurisdiction 

under the CDA, we must decide whether the Contract was 

“made by” an executive agency. We conclude that it was 

not.

The Contract’s plain language compels our conclusion. 

The Contract’s first page confirms that the CPA awarded

the Contract, J.A. 598, and Agility does not contend that 

the CPA is an “executive agency” within the meaning of 

the CDA.4 Agility nevertheless presents several theories 

as to why the Contract—or, at least, each of the Task 

Orders—was made by an executive agency. 

A 

First, Agility contends that the IIG never assumed responsibility over the Contract. Though not entirely clear

from its briefing, Agility’s argument seems to be: given 

that the CPA dissolved, if the IIG never assumed responsibility over the Contract, the government must have 

emerged as the contracting party.

 

4 Although Agility suggests that the CPA issued 

Task Order No. 3 in its “capacity as an entity of the 

United States Government,” Appellant’s Br. 40, Agility 

does not contend that, when the CPA awarded the Contract, it did so as an “executive agency.”
AGILITY LOGISTICS SERVICES v. DEFENSE 9

In support of its position, Agility argues that Task 

Order No. 3 “effectively amended” the Contract to permit 

obligation of U.S. funds. And, it contends, because the 

transfer-of-authority memoranda (i.e., the CPA’s Memorandum No. 15 and the IIG’s June 15, 2004 memorandum) both concerned only DFI-funded contracts, neither 

implicated the Contract. Agility thus concludes that the 

IIG never assumed authority over the Contract. 

Agility’s argument mistakes the order of events. The 

CPA awarded the Contract on June 6, 2004. At that time, 

the Contract was DFI-funded. On June 15, 2004, the IIG 

assumed responsibility over DFI-funded contracts and 

delegated contract-administration responsibility to the 

PMO, consistent with the authority granted by the CPA’s 

Memorandum No. 15. Task Order No. 3 did not issue 

until June 19, 2004—four days after the IIG assumed 

responsibility over DFI-funded contracts. When responsibility over DFI-funded contracts transferred from the 

CPA to the IIG, the Contract was DFI-funded. The IIG 

therefore assumed responsibility over the Contract.

Agility next directs us to the parties’ conduct. It argues that, “[e]ven if the [Contract] and the [Task Orders] 

were ambiguous regarding the [government’s] contractual 

privity with Agility,” the conduct of Agility, the IIG, and 

the government “definitively resolve[s]” any such ambiguity. Appellant’s Br. 27. But we resort to extrinsic evidence to interpret a contractual provision only if that 

provision is ambiguous. E.g., McAbee Constr., Inc. v. 

United States, 97 F.3d 1431, 1434–35 (Fed. Cir. 1996). 

Agility has not demonstrated that the Contract was 

ambiguous as to the identity of the contracting parties. 

The Contract clearly stated that the CPA awarded the 

Contract to Agility. J.A. 598. And, as described above, 

the IIG assumed responsibility over the Contract pursuant to memoranda issued as the CPA was preparing for 

dissolution. 
10 AGILITY LOGISTICS SERVICES v. DEFENSE

Even if we were to consider the parties’ conduct, it 

would not alter our conclusion. Agility argues that the 

government’s actions such as issuing and amending task

orders “cannot be squared with the notion that the [government] was acting as a mere ‘agent’ of the [IIG].” 

Appellant’s Br. 29–30. We agree with the government 

and the Board, however, that the PCO acted as a contract 

administrator for the IIG—which is the role the PCO 

explicitly understood itself to be in. J.A. 7 (citing 

J.A. 458); id. at 9–10.

Agility’s main contention concerning the parties’ conduct is that the government exceeded the IIG’s delegation 

of authority in several ways, such that it would be “implausible” to consider the government an agent of the IIG

and not a party itself to the Contract or Task Orders. 

Appellant’s Br. 32; see id. at 28, 30. Agility’s argument 

seems to assume that if an agent acts outside the scope of 

its authority, the agent becomes (or is really) a contracting party. Agility supplies no legal authority for this 

proposition. In fact, although Agility cites the Restatement (Third) of Agency, Appellant’s Br. 32, the Restatement acknowledges that “the fact that an agent acted 

without power to subject the principal to liability does not 

make the agent a party to the contract. This is because 

an agent who only purports to bind a disclosed principal 

to a contract does not promise to render any of the performance purportedly required from the principal.” 

Restatement (Third) of Agency § 6.01 cmt. b (Am. Law 

Inst. 2006).5 Therefore, even assuming for the sake of 

 

5 Id. § 6.10 cmt. b (“[A]n agent does not become a 

party to a contract made on behalf of a disclosed principal 

unless the agent so agrees with the third party. Thus, if 

the principal on whose behalf the agent purports to act is 

not bound by a contract because the agent acted without 

actual or apparent authority, the third party may not 
AGILITY LOGISTICS SERVICES v. DEFENSE 11

argument that the government exceeded its delegation of 

authority in certain respects, we see no reason to depart

from our conclusion—compelled by the Contract’s plain 

language—that the government was not a contracting 

party. 

The issue before us is whether the Contract was 

“made by” an executive agency. For the foregoing reasons, we conclude that it was not.

B 

Agility next focuses on the Task Orders individually. 

It contends that each Task Order was a discrete contract

made by an executive agency. 

Agility relies on Kingdomware Technologies, Inc. v. 

United States, 136 S. Ct. 1969 (2016), for the proposition 

that each Task Order constituted a discrete contract. In 

Kingdomware, the Court considered whether the Department of Veterans Affairs (“DVA”) must use the “Rule of 

Two” provision of 38 U.S.C. § 8127(d) every time it awards 

contracts. Id. at 1973. The DVA argued that § 8127(d) 

did not apply to “orders” issued under preexisting Federal 

Supply Schedule (“FSS”) contracts.6 The Court rejected 

that argument, finding that when the DVA places an FSS 

order, that order is a “‘contract’ within the ordinary 

meaning of that term.” Id. at 1978. 

 

subject the agent to liability on the contract unless the 

agent agreed to become a party.” (citation omitted)).

6 As the Court noted, the FSS “generally is a 

streamlined method for Government agencies to acquire 

certain supplies and services in bulk, such as office supplies or food equipment,” and “FSS contracts are ordinarily pre-negotiated between outside vendors and the 

General Services Administration, which negotiates on 

behalf of various government agencies.” Id. at 1974 

(citations omitted).
12 AGILITY LOGISTICS SERVICES v. DEFENSE

Even assuming, however, that each Task Order under 

this Contract constituted a discrete contract, such contracts were not “made by” an executive agency.

Agility argues that the “Issued By” block on the Task 

Orders indicates they were made by an executive agency. 

Agility correctly notes that Task Order Nos. 6, 11–12, and 

14–20 say they were issued by the PCO or the JCC. And

although Task Order Nos. 9 and 10 say they were issued 

by the CPA, Agility observes that these Task Orders 

issued months after the CPA dissolved, suggesting that 

the PCO actually issued them. But Task Order No. 3 

identifies the CPA as the issuer and issued before the 

CPA dissolved. Undiscouraged, Agility contends that the 

CPA was really acting as a U.S. executive agency when 

issuing this particular Task Order. 

Initially, we note that neither party disputes the 

Board’s finding that under these circumstances “the name 

appearing in [the ‘Issued By’ block] had little, real significance.” J.A. 10. But even if we assume that an executive 

agency issued each of the Task Orders, that does not 

mean that an executive agency was a party to the Task 

Orders.

Agility again relies on Kingdomware in arguing that 

the Task Orders “created discrete contractual obligations 

for the government agency that issued them, not for the 

entity that made the umbrella contract against which the 

orders were made.” Appellant’s Reply Br. 15; see Kingdomware, 136 S. Ct. at 1978 (“When the [DVA] places an 

FSS order, that order creates contractual obligations for 

each party and is a ‘contract’ within the ordinary meaning 

of that term.”). 

We do not read Kingdomware to broadly hold that the 

issuer of any task order under any contract renders the 

issuer a party to the task-order-as-contract, regardless of 

the circumstances. Unlike here, for example, there was 

no indication in Kingdomware that the DVA’s involve-
AGILITY LOGISTICS SERVICES v. DEFENSE 13

ment in the contracting was solely as a contract administrator for another party—much less for a foreign government.

Consistent with our earlier conclusion, we find that 

even if an executive agency issued the Task Orders, it did 

so as a contract administrator and not as a contracting 

party. Thus, the Task Orders were not “made by” an 

executive agency as required by the CDA. 

C 

Agility finally argues that the Contract was novated 

to make the government a party—if not to the Contract, 

then at least to the Task Orders. We reject this argument.

A novation is a “substituted contract that includes as 

a party one who was neither the obligor nor the obligee of 

the original duty.” Restatement (Second) of Contracts 

§ 280 (Am. Law Inst. 1981). “Assent of . . . the obligor of 

the new duty is always necessary.” Id. § 280 cmt. c; see 30 

Richard A. Lord, Williston on Contracts § 76:11 (4th ed. 

2004) (observing “the agreement of all the parties to the 

new contract” or “consent of all the parties” as a required 

element of a novation); accord Hicks v. United States, 89 

Fed. Cl. 243, 257 (2009). 

Agility’s novation theory is that it discharged the 

CPA’s and IIG’s obligation to pay in exchange for the 

government’s promise to pay. But this theory is essentially just a reformulation of Agility’s previous arguments. 

For example, Agility argues that the government demonstrated its intent to become a contracting party (in a 

novated contract) by allegedly exceeding its delegation of 

authority from the IIG and issuing the Task Orders. For 

reasons already discussed, we find that these acts do not

show that the government was, or intended to be, a contracting party. 
14 AGILITY LOGISTICS SERVICES v. DEFENSE

At bottom, Agility simply has difficulty pointing to a 

deal it had with the government as a party, and not as an 

agent. Agility’s difficulty is especially hard to overlook in

this case, where the Contract says:

The . . . U.S. Government . . . will not be liable to 

[Agility] for any performance undertaken after 

the [transfer of authority].

J.A. 671 (emphasis added). 

We conclude that no novation rendered the government a party to the Contract or the Task Orders. We 

further conclude, for the foregoing reasons, that the Board 

lacked jurisdiction under the CDA because neither the 

Contract nor the Task Orders were made by an executive 

agency. We therefore affirm the Board’s dismissal for 

lack of CDA jurisdiction. 

II

Agility also argues that the Board had jurisdiction 

under its charter. 48 C.F.R. ch. 2, app. A, pt. 1. The 

Board decided it did not. And because that Board decision was not made pursuant to the CDA, we lack jurisdiction to review it.

Under 28 U.S.C. § 1295(a)(10), our jurisdiction over 

Board decisions extends only to decisions made pursuant 

to the CDA. N. Am. Corp. v. United States, 706 F.2d 

1212, 1213 (Fed. Cir. 1983); see also G.E. Boggs & Assocs. 

v. Roskens, 969 F.2d 1023, 1026 (Fed. Cir. 1992); Zinger 

Constr. Co. v. United States, 753 F.2d 1053, 1054 (Fed. 

Cir. 1985). Agility acknowledges this precedent but 

argues that a 2011 amendment to § 1295(a)(10) changed 

our jurisdiction over Board decisions, superseding the 

precedent cited above. We disagree.

Before the referenced amendment, § 1295(a)(10) gave 

this court jurisdiction “of an appeal from a final decision 

of an agency board of contract appeals pursuant to section 
AGILITY LOGISTICS SERVICES v. DEFENSE 15

8(g)(1) of the Contract Disputes Act of 1978 (41 U.S.C. 

607(g)(1)).” 28 U.S.C. § 1295(a)(10) (2006) (emphasis 

added) (version in effect from October 1982 to January 

2011). In 2011, however, Congress removed the underlined language and replaced it with “section 7107(a)(1) of 

title 41.” Public Contracts Act, Pub. L. No. 111-350, sec. 

5(g)(5)(A), 124 Stat. 3677, 3848 (2011). The text of section 

8(g)(1) of the CDA is substantively identical to that of 41 

U.S.C. § 7107(a)(1).7 This observation comports with the 

 

7 Section 8(g)(1) of the CDA states: 

The decision of an agency board of contract appeals shall be final, except that—(A) a contractor 

may appeal such a decision to the Court of Claims 

within one hundred twenty days after the date of 

receipt of a copy of such decision, or (B) the agency 

head, if he determines that an appeal should be 

taken, and with the prior approval of the Attorney 

General, transmits the decision of the board of 

contract appeals to the United States Court of 

Claims for judicial review, under section 2510 of 

title 28, United States Code, as amended herein, 

within one hundred and twenty days from the 

date of the agency’s receipt of a copy of the board’s 

decision.

Contract Disputes Act of 1978, Pub. L. No. 95-563, 

§ 8(g)(1), 92 Stat. 2383, 2387 (1978). In 1982, Congress 

replaced references to the Court of Claims in the abovequoted text with references to this court. Federal Courts 

Improvement Act of 1982, Pub. L. No. 97-164, sec. 156, 96 

Stat. 25, 47 (1982).

Section 7107(a)(1) of title 41 states: 

IN GENERAL.—The decision of an agency board is 

final, except that—(A) a contractor may appeal 

the decision to the United States Court of Appeals 
16 AGILITY LOGISTICS SERVICES v. DEFENSE

2011 Act’s schedule indicating that section 8(g)(1) of the 

CDA (previously codified at 41 U.S.C. § 607) would be 

recodified at 41 U.S.C. § 7107. Public Contracts Act sec. 

7, 124 Stat. at 3860. And it is consistent with Congress’s 

express intent to restate, not substantively change, existing law. Id. sec. 2(b), 124 Stat. at 3677 (“In the codification of laws by this Act, the intent is to conform to the 

understood policy, intent, and purpose of Congress in the 

original enactments, with such amendments and corrections as will remove ambiguities, contradictions, and 

other imperfections . . . .”); see H.R. Rep. No. 111-42, at 3 

(2009) (“This bill is intended to restate existing law without substantive change.”).

We conclude that the 2011 amendment to 

§ 1295(a)(10) did not substantively change this court’s 

jurisdiction over Board decisions, which remains limited 

to those decisions made pursuant to the CDA. Because 

the Board’s decision concerning its charter jurisdiction 

was not made pursuant to the CDA, we have no jurisdiction to review it.

CONCLUSION

We have considered Agility’s other arguments and 

find them unpersuasive. For the foregoing reasons, we 

 

for the Federal Circuit within 120 days from the 

date the contractor receives a copy of the decision; 

or (B) if an agency head determines that an appeal should be taken, the agency head, with the 

prior approval of the Attorney General, may 

transmit the decision to the United States Court 

of Appeals for the Federal Circuit for judicial review under section 1295 of title 28, within 120 

days from the date the agency receives a copy of 

the decision.

41 U.S.C. § 7107(a)(1).
AGILITY LOGISTICS SERVICES v. DEFENSE 17

affirm the Board’s dismissal for lack of jurisdiction under 

the CDA. Because our jurisdiction over Board decisions 

extends only to decisions made pursuant to the CDA, we 

dismiss the appeal insofar as it relates to the Board’s 

decision concerning its charter jurisdiction.

AFFIRMED-IN-PART AND DISMISSED-IN-PART

COSTS

The parties shall bear their own costs.