ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of-- New Iraq Ahd Company ) ) ) ) ) ASBCA No. 58778 Under Contract No. 000000-00-0-0000 APPEARANCE FORTHE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: Mr. Abbas Abed Mohsin Owner Raymond M. Saunders, Esq.

Army ChiefTrial Attorney CPTVera A. Strebel, JA

Trial Attorney OPINION BYADMINISTRATIVE JUDGE DICKINSON ON THE GOVERNMENT'S MOTION TO DISMISS FORLACK OF JURISDICTION Appellant, New Iraq Ahd Company (NIAC) seeks $175,440.00 USD as compensation for materials it purchased to install a fence along a majortransportation route in Iraq. The government moves to dismiss the appeal for lack of jurisdiction on the basis that no contract was ever issued to NIAC. NIAC opposes the motion. STATEMENT OF FACTS FORPURPOSES OF THE MOTION 1. On 11 August 2008 the Commander, Camp Taji, Iraq, issued a Memorandum for Record (MFR) proposing the construction ofa new fence along Route Tampa, a major transportation route in Iraq (R4, tab 1): Trash continuallypiles along the road, in the shoulder, and eventually travel into the surrounding villages. The trash is a constant visual reminder ofpoverty and lack of economic development, which is notthe case for the area. The Fence would limit the trash movement and allow civil works employees to collectthe trash easier. This fence will demonstrate progress and economic development within the local communities. The MFR included a projected cost of$245,815.00 USD, indicated that funding was not yet available and that, once funded, a contractorwould be given a Notice to Proceed (NTP) (id.).2. On 5 September 2008 a Memorandum ofAgreement (MOA) betweenthe government and NIAC was executed, the terms ofwhich included: 1. 2-14, 2nd BDE, 25th Infantry Division has requested to install a fence on Route Tampa on the western side of the south bound lane from MB 3318 9882 to 38S MB 3500 9617. 2. The following outlines the terms ofthis agreement:

E. This agreement will not become effective until funding is approved and the contractor is notified by the Project Officerto begin work. F. Funds are not presently available for this contract. The Government's obligation under this contract is contingentupon the availability ofappropriated funds from which payment for contractpurposes can be made. No legal liability on the part ofthe Government for any payment may arise until funds are made available to the Contracting Officer for this contract and until the Contractor receives notice ofsuch availability, to be confirmed in writing by the contracting officer.

3. By signing below both parties agree to the terms in paragraph 2. (R4, tabs 2-3A) The MOA was signed by both the government and NIAC (compl.; R4, tabs 2-3A). There was nothing in the MOA directing NIAC to perform any work orpreparation for workpriorto funding followed by the issuance ofan NTP. 3. After signing the MOA, NIAC electedtopurchase materials with which to constructthe fence, incurring costs of$175,440.00 USD (compI.; app. opp'n). 4. Funding neverbecame available for the project and an NTP was never issued to NIAC (R4, tabs 3-3B; compl.; app. opp'n). It is undisputed that NIAC did notperform any ofthe work described in the MOA.

25. On 17 July 2013, almost five years after signingthe MOA, NIAC contacted the Board seekingpayment of$175,440.00 USD. The matter was docketed on 18 July 2013 as ASBCANo. 58778. DECISION The Board hasjurisdiction under the Contract Disputes Act (CDA) of 1978, 41 U.S.C. §§ 7101-7109, involving disputes that arise under or relate to contracts for the procurement ofgoods or services. The MOA entered into byNIAC and the government expresslymade the agreement contingent upon the availability offunds. The funds neverbecame available and, by its express terms, the agreementtherefore neverbecame binding on eitherthe government orNIAC. Itis undisputed that NIAC did not provide any goods or services to the government under the terms ofthe MOA. The purchase ofmaterials made by NIAC prior to funding and receipt ofan NTP was a unilateral decision made by NIAC and NIAC alone bore the risk that the projectwould not be funded. The government's motion to dismiss for lack of jurisdiction is granted because there was never any contract. Dated: 12 June 2014

Administrative Judge Acting Chairman Armed Services Board ofContractAppeals

3 Adminis,rative Judge Armed Services Board ofContractAppeals

I concur



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RICHARD SHACKLEFORD Administrative Judge Vice Chairman Armed Services Board ofContractAppealsI certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContractAppeals in ASBCA No. 58778, Appeal ofNew Iraq Ahd Company, rendered in conformance with the Board's Charter. Dated:

4 JEFFREY D. GARDIN Recorder, Armed Services Board ofContractAppeals