# United States **Court of Appeals**  **for the Federal Circuit**

______________________

AGILITY LOGISTICS SE RVICES COMPANY KSC, Appellant

v.

JAMES N. MATTIS, SECRETARY OF DEFENSE, RYAN D. MCCARTHY, AC TING SECRETARY OF THE ARMY, Appellees

______________________

2015

- 1555

______________________ Appeal from the Armed Services Board of Contract Appeals in No s . 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

______________________

J OHN P ATRICK E LWOOD , Vinson & Elkins LLP, Was hi ngton, DC, argued for appellant. Also represented by M ICHAEL C HARNESS , J OSHUA S TEPHEN J OHNSON

.

W ILLIAM J AMES G RIMALDI , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for appellees. AlsoAGILITY LOGISTICS SE RVICES v. DEFENSE 2

represented by C HAD A. R EADLER , R OBERT E. K IRSCHMAN , J R ., C LAUDIA B URKE

.

______________________

Before P ROST , Chief Judge, L OURIE and C HEN , Circuit Judges.

P ROST , Chief Judge

. This is an appeal from a decision of the Armed Se rvices 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

. T he Board also found that it lacked jurisdiction under its charter. Because th at decision was not made pursuant to the CDA , we lack jurisdiction to review it

. We therefore affirm in part and dismiss in part.

B ACKGROUND

I
In 2003, the United States and i ts coalition partners created the Coalition Provisional Authority (“CPA”) to rule in Iraq pending transfer of that authority to a newly consti tuted Iraqi government. J.A. 1– 2; see id. at 318

– 19.
On June 6, 2004, t he CPA awarded a ppellant 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 C ontract 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 formerlyAGILITY 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 managemen t 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 r equired. J.A. 604.

The Contract also specified that “[t]he obligation u nder 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 determin ation on its decision. ECF No. 32 at 4

. On remand, the Board acknowledged the parties’ agreement that “[Agility] has never existed” and cla rified 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 jurisdi ction . 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 rea l party in interest here. J.A. 2868

– 69. T he government now argues that because the named appellant “never existed

, ” Agility faces additional jurisdictional problems suc h as lack of standing

. See Appellee’s Br. 53

– 57. Because we affirm the Board’s decision on oth er grounds, we do not reach these issues . We continue, however, to refer to appellant as Agility throughout this opinion.AGILITY LOGISTICS SE RVICES v. DEFENSE 4

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

. 2 J.A. 340 ¶ 8.
The Contract further required Agili ty to acknowledge the impending transfer of authority and the CPA ’s scheduled dissolution : [Agility] hereby recognizes that a transfer of a uthority (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 Gover nment will not be liable to the contractor for any performance undertaken after the TOA.

J.A. 671.

II
In p repar ation for the transfer of authority to the Ir aqi Interim Government (“IIG”) , the CPA issued Memora ndum No. 15 in mid

- June 2004

. J.A. 370

– 71. Memorandum No. 15 allow ed the I IG Minister of Finance to delegate “responsibility to monitor and confirm perfo rmance, certify and/or make payments, and other wise 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 aut hority to the [IIG], the Chief of Mi ssion of the United States Embassy, Baghdad and/or the Commander of the Multi

- National Forc e- 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

O n June 15, 2004, the IIG Minister of Finance del egated contract

- administration responsibility concerning DFI

- funded c ontracts 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 authorit ies 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 Multi

National Force

- I on June 30, 2004, both of whom shall also have the a uthority 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. I n accordance with the IIG Minister of Finance’s June 15, 2004 memorandum , the PMO’s contract

- administration authori ty transferred to th e 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.

Followin g the CPA’s dissolution, contract

administration authority was further delegated to th e 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 1 5 , 2004 memorandum , stating : In accordance with the Ministry of Finance’s le tter[,] dated 15 June 2004, the [PCO] will continueAGILITY LOGISTICS SE RVICES v. DEFENSE 6

to monitor and confirm performance, certify and/or make payments, and otherwise administer contracts or gra nts 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 o rders issued under the Contract through December 2007. O f 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.

I II
In September 2010, a fter a period of n egotiations b etween the parties, a U.S. contracting officer (“CO”) issued final decisions regarding each of the T ask Orders. The CO determined that Agility owed the government almost $81 million due to the government’s overpayment

. Agility appealed all b ut one of these decisions to the Board.
Separately, in April 2011, Agility submitted a cert ified 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 Boa rd 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 alte rnatively under the Board’s charter.

3 The Joint Contracting Command

Iraq/ 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) ). Boar d precedent held that the CPA was not an executive agenc y w ithin the meaning of the CDA

. Because t he CPA undisputedly awarded the Contract , and because t he Board found that the IIG assumed responsibility over the Contract as of the IIG’s June 15, 2004 mem orandum , the Board determined that it would lack CDA jurisdiction absent some showing that the Contract was novated or assigned to a n executive

agency

. Id. The Board found no evidence of such a nov ation or assignment . R ather, 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 sep arate discussion, the Board concluded that it lacked juri sdiction under its charter. Id. at 11

– 12.
Agility timely appealed

. We have jurisdiction under 28 U.S.C. § 1295(a)(10).

D ISCUSSION 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 grosslyAGILITY LOGISTICS SE RVICES v. DEFENSE 8

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, Agilit y 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 jurisdi ction to decide appeals of contracting officer decisions relating to such contracts

, see id. § 7105(e)(1)(A)

. Ther efore , to determine whether the Board had jurisdiction under the CDA, w e must decide whether the Contract was “made by” an executive agency. We conclude that it was
not.

T he 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 —w as made by an executive agency

. A
First, Agility contends that the IIG never assumed r es ponsibility over the Contract. T hough not entirely clear from its briefing, A gility’s argument seems to be: given that the CPA dissolved, if the IIG never assumed respo nsibility 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 tha t , when the CPA awarded the Co ntract, it did so as an “executive agency.”AGILITY LOGISTICS SERVICES v. DEFENSE 9

In support of its position, Agility argues that Task Or der No. 3 “effectively amended” the Contract to permit obligation of U.S. funds. And, it contends

, because the
t ransfer

- of

- authority memoranda ( i.e., the CPA’s Mem orandum No. 15 and the IIG’s June 15, 2004 memora ndum ) 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 D FI

- 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

un til June 19, 2004

— four days after the IIG assumed responsibility over DFI

- funded contracts

. W hen respons ibility 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 a rgues 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 ambig uity

. Appellant’s Br. 27. But w e resort to extrinsic ev idence 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 state d that the CPA awarded the Contract to Agility . J.A. 598. And, as described above, the IIG assumed responsibili ty over the Contract purs uant to memoranda issued as the CPA was preparing for dissolution

.AGILITY LOGISTICS SE RVICES v. DEFENSE 10

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 [go vernment] 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 adminis trator 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’ co nduct is that the government exceeded the IIG’s delegation of authority in several ways, such that it would be “i mplausible” 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 act s outside the scope of its authority , the agent becomes (or is really) a contrac ting party. Agility supplies no legal authority for this proposition. In fact, although Agility cites the Restat ement (Third) of Agency, Appellant’s Br. 32, the Restat ement 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 pe rformance purportedly required from the principal.” Restatement (Third) of Agency § 6.01 cmt. b (Am. Law Inst. 2006)

. 5 Th erefore , even assuming for the sake of

5 Id. § 6.10 cm t. 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 notAGILITY 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 wh ether the Contract was

“ made by ” an executive agency

. For the foregoing re asons, we conclude that it was not.

B
Agilit y 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 eac h Task Order constituted a discrete contract. I n Kingdomware , the Court considered whether the Depar tment of Vet erans A ffairs (“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 su pplies or food equipment,” and “FSS contracts are ordinar ily pre

- negotiated between outside vendors and the General Services Administration, which negotiates on behalf o f various government agencies.” Id. at 1974 (citations omitted).AGILITY LOGISTICS SE RVICES v. DEFENSE 12

E ven assuming , however, that each Task Order under this Contract constituted a discrete contract, such co ntracts were not “made by” an executive agency.
Agility argues that the “Issued By” block on the Task Or ders 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

. A nd 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 identifie s the CPA as the issuer and issued before the CPA dissolved

. Un discouraged

, Agility contends that the CPA was really acting as a U.S. execu tive agency when issuing this particular Task Order

. Initially , we note that neither party disputes the Board’s finding that under these circumstanc es “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 contrac tual obligations for each party and is a ‘contract’ within the ordinary meaning of that term.”)

. W e 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 , reg ardless of the circumstances

. Unlike here, for example, t here was

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

ment in the contracting was solely as a contract admini strator for another party

— much less for a foreign gover nment.

Consistent with our e arlier 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 arg ument.

A novation is a “substituted contract that includes as a party one who was neither the obligor nor the oblige e 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 discharge d the CPA ’s and IIG’s obligation to pay in exchange for the government’s promise to pay. But this theory is essentia lly just a reformulation of Agility’s previous arguments

. For example, Agility argues that the government demo nstrated 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 co ntracting party

.AGILITY LOGISTICS SE RVICES v. DEFENSE 14

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 gover nment a party to the Contract or the Task Orders. We further concl ude , for the foregoing reasons, that the Board lacked jurisdiction under the CDA because neither the Con tract nor the Task Orders were mad e by an executive

agency

. We therefore affirm the Board’s dismissal for lack of CDA jurisdiction

. II
Agility also ar gues 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 dec ision was not made pursuant to the CDA, we lack jurisdi ction to review it.

U nder 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 sectionAGILITY 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) ( 200 6) (emphasis added) (version in effect from October 1982 to January 2011)

. In 2011, however, Congress removed the unde rlined 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 a ppeals 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 app eals 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 above

quoted 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 :
I N GENERAL .— The decision of an agency board is final, except that

— (A) a contractor may appeal the decision to the United States Court of AppealsAGILITY LOGISTICS SE RVICES v. DEFENSE 16

2011 Act’ s schedule indicating that section 8(g)(1) of the CDA ( previously codifi ed at 41 U.S.C. § 607 ) would be recodified at 41 U.S.C. § 7107. Public Contracts Act s ec. 7, 124 Stat. at 3860. And it is consistent with Congress’s

express intent to restate, not substantively change , exis ting law. Id. sec. 2(b), 124 Stat. at 3677 (“In the codific ation 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 corre ctions 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 wit hout 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 jurisdi ction to review it.

C ONCLUSION We have considered Agility’s other argumen ts and find them unpersuasive. For the foregoing reasons, we

for the Federal Circuit w ithin 120 days from the date the contractor receives a copy of the decision; or (B) if an agency head determines that an a ppeal should be taken, the agency head, with the prior approval of the Attorney General, may transmit the decision to the United State s C ourt of Appeals for the Federal Circuit for judicial r eview 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 o ur jurisdiction over Board decisions extends only to decisions made pursuant to the CDA , we dismiss the appe al insofar as it relates to the Board’s decision concerning its charter jurisdiction.

AFFIRMED

- IN

- PART AND DISMISSED

- IN

- PART

C OSTS The parties shall bear their own costs.