ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of--

New Iraq Ahd Company 

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ASBCA No. 58778 

Under Contract No. 000000-00-0-0000 

APPEARANCE FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

Mr. Abbas Abed Mohsin 

Owner 

Raymond M. Saunders, Esq. 

Army Chief Trial Attorney 

CPT Vera A. Strebel, JA 

Trial Attorney 

OPINION BY ADMINISTRATIVE JUDGE DICKINSON 

ON THE GOVERNMENT'S MOTION TO DISMISS 

FOR LACK 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 major transportation 

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 FOR PURPOSES OF THE MOTION 

1. On 11 August 2008 the Commander, Camp Taji, Iraq, issued a 

Memorandum for Record (MFR) proposing the construction of a new fence along 

Route Tampa, a major transportation route in Iraq (R4, tab 1): 

Trash continually piles along the road, in the shoulder, and 

eventually travel into the surrounding villages. The trash 

is a constant visual reminder of poverty and lack of 

economic development, which is not the case for the area. 

The Fence would limit the trash movement and allow civil 

works employees to collect the 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 contractor would be given a Notice to 

Proceed (NTP) (id.). 
2. On 5 September 2008 a Memorandum of Agreement (MOA) between the 

government and NIAC was executed, the terms of which 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 of this agreement: 

E. This agreement will not become effective until 

funding is approved and the contractor is 

notified by the Project Officer to begin work. 

F. Funds are not presently available for this 

contract. The Government's obligation under 

this contract is contingent upon the availability 

of appropriated funds from which payment for 

contract purposes can be made. No legal 

liability on the part of the Government for any 

payment may arise until funds are made 

available to the Contracting Officer for this 

contract and until the Contractor receives notice 

of such 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 

or preparation for work prior to funding followed by the issuance of an NTP. 

3. After signing the MOA, NIAC elected to purchase materials with which to 

construct the fence, incurring costs of $175,440.00 USD (comp I.; app. opp'n). 

4. Funding never became 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 

not perform any of the work described in the MOA. 

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5. On 17 July 2013, almost five years after signing the MOA, NIAC contacted 

the Board seeking payment of$175,440.00 USD. The matter was docketed on 18 July 

2013 as ASBCA No. 58778. 

DECISION 

The Board has jurisdiction 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 of goods or services. The MOA entered into by NIAC and the 

government expressly made the agreement contingent upon the availability of funds. 

The funds never became available and, by its express terms, the agreement therefore 

never became binding on either the government or NIAC. It is undisputed that NIAC 

did not provide any goods or services to the government under the terms of the MOA. 

The purchase of materials made by NIAC prior to funding and receipt of an NTP was a 

unilateral decision made by NIAC and NIAC alone bore the risk that the project would 

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 

of Contract Appeals 

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Adminis, rative Judge 

Armed Services Board 

of Contract Appeals 

I concur 

M 

RICHARD SHACKLEFORD 

Administrative Judge 

Vice Chairman 

Armed Services Board 

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. 58778, Appeal of New 

Iraq Ahd Company, rendered in conformance with the Board's Charter. 

Dated: 

4 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals