              ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of--                                   )
                                              )
New Iraq Ahd Company                          )      ASBCA No. 58778
                                              )
Under Contract No. 000000-00-0-0000           )

APPEARANCE FOR THE APPELLANT:                        Mr. Abbas Abed Mohsin
                                                      Owner

APPEARANCES FOR THE GOVERNMENT:                      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




                                                Adminis, rative Judge
                                                Armed Services Board
                                                of Contract Appeals


                                                I concur


                                                 M
                                                RICHARD SHACKLEFORD
Administrative Judge                            Administrative Judge
Acting Chairman                                 Vice Chairman
Armed Services Board                            Armed Services Board
of Contract Appeals                             of Contract Appeals




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      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:




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




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