               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                   )
                                               )
White Hand Company, LLC                        )      ASBCA No. 59184
                                               )
Under Contract No. 1108-MROC-004               )

APPEARANCE FOR THE APPELLANT:                         Mr. Haider Zaid Shahata
                                                       President

APPEARANCES FOR THE GOVERNMENT:                       Raymond M. Saunders, Esq.
                                                       Army Chief Trial Attorney
                                                      L TC Mark A. Ries, JA
                                                      LTC Peter D. DiPaola, JA
                                                       Trial Attorneys

      OPINION BY ADMINISTRATIVE JUDGE DICKINSON ON THE
   GOVERNMENT'S MOTION TO DISMISS FOR LACK OF JURISDICTION

       Appellant White Hand Company, LLC, seeks payment from the United States
Government for work done under the Iraqi Commander's Emergency Response
Program (I-CERP) Contract No. 1108-MROC-004. The government has moved to
dismiss the appeal for lack of jurisdiction. Appellant opposes the motion.

       STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

       1. The contract at issue was awarded by the Mosul Reconstruction Operations
Center (MROC) on 10 December 2008 (gov't mot., ex. 5). The MROC and its
mission were described by its former Deputy Chief as:

               2.      The MROC was established in partnership with the
               Iraqi government to assist the local populous of the
               Ninevah Province in building civil capacity through the
               execution of reconstruction projects, which were executed
               under the [I-CERP]. I-CERP projects involved urgent,
               small-scale, humanitarian relief, and reconstruction
               projects and services that would immediately assist the
               indigenous population and were of a scale that the local
               population or government could sustain. These projects
               were solely for the benefit of the Iraqi people and could not
               be for the direct benefit or the use of the U.S. government
              or Coalition Forces. All 1-CERP projects utilized Iraqi
              Government funds.

              3.      Concerning these reconstruction projects, the
              MROC synchronized its efforts in nominating projects
              with the cognizant Iraqi ministries and Director Generals.
              The Director Generals would then approve projects and
              select the contractors. At this point, an 1-CERP Project
              Purchasing Officer ("PPO") would award the 1-CERP
              projects to the selected contractors and undertake the
              administration's projects to ensure the contractors executed
              them properly.

              4.      In 1-CERP project number 1108-MROC-004, the
              MROC sought to repair damage caused to the Al Salaam
              Hospital by a vehicle-borne improvised explosive device
              [in order to] enable the restoration of health care service to
              the residents of Mosul.

(Gov't mot., ex. 1, see also gov't mot., exs. 2-5, 8)

       2. Specifically, the guidance for purchases under the 1-CERP provides:

              [1-CERP] funds are government of Iraq (GOI) funds for
              urgent reconstruction projects to benefit the citizens of Iraq
              while simultaneously growing and achieving Iraqi military
              and civil self-sufficiency. 1-CERP uses U.S. procurement
              and financial systems. GOI allocates 1-CERP funds by
              province based on population density.

              1-CERP rules and guidance:



                     • Prominently feature the new Iraqi flag and use
                       other techniques to associate 1-CERP projects
                       with an Iraqi government that is working to live
                       up to its promise of essential services.



              Specific uses for 1-CERP include the following:



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                     • Health clinics; repair or reconstruction.



              I-CERP cannot be used for the following:



                     • Projects with a direct or indirect benefit to U.S.,
                       coalition, or supporting military personnel.

(Gov't mot., ex. 9 at 23-24)

       3. There is no provision in the I-CERP contract (gov't mot., ex. 5) or in the
I-CERP guidance (gov't mot., ex. 9 at 23-25) that gives the Board jurisdiction to
adjudicate disputes under the contract.

       4. The project work was considered complete on 18 April 2009 and turned over
to the Government of Iraq on that date. The I-CERP Final Government of Iraq
Closure Letter stated:

              Signing of this document signifies final closure of the
              enclosed project, relinquishes further responsibility from
              Coalition Forces and represents receipt of responsibility for
              further operating and maintenance costs to the Government
              of Iraq.

(Gov't mot., ex. 7) The document was signed by the Deputy Director General of
Health on behalf of the Government of Iraq.

                                      DECISION

        We have previously held that we have no jurisdiction to decide disputes arising
under CERP contracts which, even though funded with United States Government
appropriated funds, are for the direct benefit of the indigenous population of Iraq and
Afghanistan. Latifi Shagiwall Construction Co., ASBCA No. 58872, 15-1 BCA
if 35,937. The evidence before us demonstrates that I-CERP contracts are even further
removed from our jurisdiction as they are contracts funded entirely by the Iraqi
Government for the direct benefit of the Iraqi people. The only involvement of the
United States Government in an I-CERP contract is to act as the agent of the Iraqi
Government in issuing the Iraqi-funded contracts and administering them to ensure


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that the contract is performed as required by its terms. There is no evidence that the
1-CERP contract now at issue provides any remedy to the contractor that obligates the
United States Government or its funds, nor is there any provision which creates
jurisdiction for this Board to adjudicate disputes under the 1-CERP contract.

       The government's motion to dismiss for lack of jurisdiction is granted.

       Dated: 2 June 2015

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                                               DIANA S. DICKINSON
                                               Administrative Judge
                                               Armed Services Board
                                               of Contract Appeals

I concur




                                                RICHARD SHACKLEFORD
Administrative Judge                            Administrative Judge
Acting Chairman                                 Vice Chairman
Armed Services Board                            Armed Services Board
of Contract Appeals                             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. 59184, Appeal of White
Hand Company, LLC, rendered in conformance with the Board's Charter.

      Dated:



                                                JEFFREY D. GARDIN
                                                Recorder, Armed Services
                                                Board of Contract Appeals




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