Hayley Hoffman · July 2013
81 GEO. WASH. L. REV. 1368 (2013)
In 2010, the Armed Services Board of Contract Appeals (ASBCA) decided the appeal of MAC International FZE (“MAC”), a company attempting to bring a claim under the Contract Disputes Act (CDA) against the Coalition Provisional Authority of Iraq (“Authority”) and the United States. The Authority, staffed primarily by United States employees and funded by U.S. appropriations, United Nations contributions, and Iraqi funds, had failed to pay MAC over five million dollars it was owed under contract. The ASBCA found that the Authority, because it was an international coalition, could not be considered an executive agency of the United States and, as such, the CDA did not apply. Therefore, MAC’s claim could not be heard.
This Note argues the ASBCA’s determination that the Authority was not an agency of the United States highlighted a gap in procurement law. As international coalitions, like the Authority, are not subject to United States procurement law, they are free of all procurement regulation. This situation, which effectively makes coalitions and member states immune from any potential contract action against them, is undesirable. To close this gap, Congress should pass a statute disallowing use of appropriated funds by coalitions that fail to meet a minimum standard of procurement regulation. The proposed language, which mirrors the World Trade Organization’s Government Procurement Agreement, is flexible enough to meet the needs of coalitions while ensuring that contractors have a forum available to hear and decide contract disputes, thereby adequately accounting for the concerns of both coalition member states and the contractors supplying them.
