Order Code RL32370
CRS Report for Congress
Received through the CRS Web
The Coalition Provisional Authority (CPA):
Origin, Characteristics, and
Institutional Authorities
Updated September 21, 2006
L. Elaine Halchin
Analyst in American National Government
Government and Finance Division
Congressional Research Service ˜ The Library of Congress

The Coalition Provisional Authority (CPA):
Origin, Characteristics, and Institutional Authorities
Summary
Responsibility for overseeing reconstruction in post-conflict Iraq initially fell
to the Office of Reconstruction and Humanitarian Assistance (ORHA). Established
in early 2003, ORHA was headed by Lieutenant General Jay M. Garner, U.S. Army
(ret.). By June 2003, ORHA had been replaced, or subsumed, by the Coalition
Provisional Authority (CPA), which was led by Ambassador L. Paul Bremer III. On
June 28, 2004, CPA ceased operations.
Whether CPA was a federal agency is unclear. Competing, though not
necessarily mutually exclusive, explanations for how it was established contribute to
the uncertainty about its status. Some executive branch documents supported the
notion that it was created by the President, possibly as the result of a National
Security Presidential Directive (NSPD). (This document, if it exists, has not been
made available to the public.) Another possibility is that the authority was created
by, or pursuant to, United Nations Security Council Resolution 1483 (2003). Finally,
two years after CPA was established, a Justice Department brief asserted that the
then-Commander of U.S. Central Command (CENTCOM) had created CPA.
Given that its organizational status is uncertain, an examination of selected
features of CPA might be instructive in assessing what type of organization it was.
The authority was closely aligned with the Department of Defense (DOD); the Under
Secretary of Defense designated the Secretary of the Army as executive agent for
CPA. Other significant features of the authority included its Office of Inspector
General (OIG, or IG), which was expected to work closely with the DOD and U.S.
Agency for International Development (USAID) Offices of Inspector General; the
extent of its procurement activities; its regulatory authority; and its Program Review
Board. An undated organization chart provided some insight into the structure of the
authority, although it did not include some key offices and positions, such as the
Deputy Administrator, the OIG, and the legislative affairs staff. Provisions in several
statutes included reporting requirements that bore directly or indirectly on CPA.
These included Sections 2202(b), 2203, 2207, and 3001 of P.L. 108-106 (117 Stat.
1209), and Section 1203 of P.L. 108-136 (117 Stat. 1392).
Subsequent to the dissolution of CPA, the question of its status arose in a
lawsuit filed against Custer Battles, LLC (CB), a company that performed work for
CPA. Two former employees of CB alleged in a lawsuit filed under the False Claims
Act (FCA) that the company had defrauded the federal government. (The case is
United States ex rel. DRC Inc. v. Custer Battles, LLC (E. Va., No. CV-04-199-A).)
Justice Department attorneys concluded that CPA was an instrumentality of the U.S.
government for the purposes of the FCA, but the presiding judge determined, in his
August 2006 opinion, that CPA was not an instrumentality. This report will be
updated as events warrant.

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
The Office of Reconstruction and Humanitarian Assistance and the
Coalition Provisional Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Key CPA Personnel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Establishment of CPA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
National Security Presidential Directive . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
United Nations Security Council Resolution 1483 . . . . . . . . . . . . . . . . . . . . 9
General Franks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Selected Characteristics of CPA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
CPA’s Relationship to the Department of Defense . . . . . . . . . . . . . . . . . . . 15
CPA Office of Inspector General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Procurement Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Appropriated Funds for the Reconstruction of Iraq . . . . . . . . . . . . . . . 20
CPA Solicitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Program Review Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Protests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Appropriated Funds for the Operating Expenses of CPA . . . . . . . . . . 28
Regulatory Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
CPA Organization Chart . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Statutory Reporting Requirements Concerning CPA and the Reconstruction
of Iraq . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Status and Characteristics of CPA as Related to the False Claims
Act (FCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Discussion of CPA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Post-CPA Organizations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Iraq Reconstruction Management Office (IRMO) and Project and
Contracting Office (PCO) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Office for Reconstruction and Stabilization . . . . . . . . . . . . . . . . . . . . . . . . 45
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
List of Figures
Figure 1. Coalition Provisional Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
List of Tables
Table 1. Statutory Reporting Requirements Concerning the CPA and
the Reconstruction of Iraq . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

The Coalition Provisional Authority (CPA):
Origin, Characteristics, and
Institutional Authorities
Introduction
The Coalition Provisional Authority (CPA or “the authority”) was established
approximately one month after United States and coalition forces took control of
Baghdad in Iraq on April 9, 2003.1 The authority’s mission was “to restore
conditions of security and stability, to create conditions in which the Iraqi people can
freely determine their own political future, (including by advancing efforts to restore
and establish national and local institutions for representative governance) and
facilitating economic recovery, sustainable reconstruction and development.”2
Information provided on the CPA website indicated that “[t]he Governing Council
and the Coalition Provisional Authority will be dissolved” by June 30, 2004, and that
“[t]his will end the responsibilities of the Coalition as an occupying power as
specified in the United Nations resolutions.”3
After examining the origin of CPA, this report discusses three views on how the
authority was established, reviews selected characteristics of the authority, identifies
statutory reporting requirements concerning the authority and the reconstruction of
Iraq, examines the implications of U.S. v. Custer Battles for CPA, explores several
policy issues, and briefly describes post-CPA organizations.
The Office of Reconstruction and Humanitarian
Assistance and the Coalition Provisional Authority
Responsibility for providing humanitarian assistance and aiding in the
reconstruction of postwar Iraq initially fell to the Office of Reconstruction and
Humanitarian Assistance (ORHA). ORHA was established by National Security
Presidential Directive (NSPD) 24, which was signed by the President on January 20,
1 CRS Report RL32105, Post-War Iraq: A Table and Chronology of Foreign Contributions,
by Jeremy M. Sharp, Melanie Caesar, and Adam Frost, p. 10.
2 U.S. Office of Management and Budget, Report to Congress Pursuant to Section 1506 of
the Emergency Wartime Supplemental Appropriations Act, 2003 (Public Law 108-11)
, June
2, 2003, p. 2.
3 Coalition Provisional Authority and Iraqi Governing Council, The November 15
Agreement: Timeline to a Sovereign, Democratic and Secure Iraq
, available at
[http://iraqcoalition.org/government/AgreementNov15.pdf].

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2003. This document also gave DOD responsibility for post-war control of Iraq.4
NPSD 24 has not been released to the public. A news article stated that ORHA was
tied to the Pentagon and that, while the U.S. Agency for International Development
(USAID) would handle much of the humanitarian and reconstruction work, ORHA
would be in charge of the funding.5 As early as February 12, it was reported that
Lieutenant General Jay M. Garner, U.S. Army (ret.), had been selected to serve as the
coordinator for humanitarian and reconstruction assistance, and that he would report
to General Tommy R. Franks, then-commander of U.S. Central Command.6
Lieutenant General Garner was appointed by the Secretary of Defense, and his
position description as head of ORHA stated:
This Office [ORHA] is established at the direction of the President of the United
States, and is located for administrative purposes under Boards, Commissions
and Task Forces, Washington Headquarters Services. This Office is under the
supervision of the Under Secretary of Defense for Policy.7
Signed by the Office of the Under Secretary of Defense for Policy on February 11,
2003, this position description was not approved and certified by the Director,
Administration and Management, Office of the Secretary of Defense, until March 5,
2003.8
As late as mid-April, it appeared that Lieutenant General Garner was still in
charge of ORHA.9 However, a news report dated May 2 stated that President George
W. Bush planned to name Ambassador L. Paul Bremer III as special envoy and civil
administrator of Iraq, and that Lieutenant General Garner would report to
Ambassador Bremer.10 On May 6, 2003, President Bush announced that he had
appointed Ambassador Bremer as Presidential Envoy and that he would serve as the
senior leader of the coalition. (Unlike his appointment as an ambassador earlier in
his career, Senate confirmation was neither required nor sought.) The White House
press release also stated:
4 U.S. Department of Defense, Office of the Inspector General, Contracts Awarded for the
Coalition Provisional Authority by the Defense Contracting Command-Washington
, Report
D-2004-057, March 18, 2004, p. 1, available at [http://www.dodig.osd.mil/Audit/reports/
FY04/04057sum.htm].
5 DeYoung and Morgan, “U.S. Plan for Iraq’s Future is Challenged; Pentagon Control,
Secrecy Questioned,” p. A21.
6 Peter Slevin, “U.S. Military Lays Out Postwar Iraq Plan; Officials Brief Congress on
Rebuilding Battered Economy, Reshaping Society,” Washington Post, Feb. 12, 2003, p.
A21.
7 U.S. Department of Defense, Office of the Inspector General, Contracts Awarded for the
Coalition Provisional Authority by the Defense Contracting Command-Washington
, p. 1.
8 Ibid.
9 Peter Baker, “U.S. Forces Will Redeploy into 3 Zones; Marines to Occupy Southern Iraq
as Army Takes over North; General Will Oversee Capital,” Washington Post, Apr. 15, 2003,
p. A31.
10 Mike Allen, “Expert on Terrorism to Direct Rebuilding,” Washington Post, May 2, 2003,
p. A1.

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In his capacity as Presidential Envoy, he will oversee Coalition reconstruction
efforts and the process by which the Iraqi people build the institutions and
governing structures that will guide their future.... Ambassador Bremer will
report to Secretary of Defense Rumsfeld and will advise the President, through
the Secretary, on policies designed to achieve American and Coalition goals for
Iraq.11
No mention was made of Lieutenant General Garner or ORHA in the press release.
On May 11, 2003, the Washington Post reported the existence of the Coalition
Provisional Authority.12 On May 13, 2003, the Secretary of Defense designated
Ambassador Bremer as CPA Administrator.13 The first regulation issued by
Ambassador Bremer, dated May 16, 2003, identified him as Administrator of CPA.
The authority’s Inspector General (IG) stated, in his initial report to Congress, that
OHRA became CPA in May 2003.14 However, a March 2004 DOD IG report stated
that the Deputy Secretary of Defense, in a June 16, 2003, memorandum, dissolved
ORHA and shifted ORHA’s functions, responsibilities, and legal obligations to
CPA.15 Apparently, no official announcement was made at the time (that is, May or
June 2003) that ORHA had been replaced, or subsumed, by CPA.
By June 18, Lieutenant General Garner no longer was the head of ORHA. A
Department of Defense (DOD) news transcript dated June 18 identified him as the
former director of ORHA, and indicated he had returned to the United States a couple
of weeks earlier.16
11 White House, Office of the Press Secretary, “President Names Envoy to Iraq,” May 6,
2003, available at [http://www.whitehouse.gov/news/releases/2003/05/20030506-5.html].
12 Peter Slevin, “Reject Baath Party, U.S. Tells Iraqi Job Hopefuls,” Washington Post, May
11, 2003, p. A22.
13 Donald Rumsfeld, Secretary of Defense, “Designation as Administrator of the Coalition
Provisional Authority,” memorandum, May 13, 2003.
14 U.S. Department of Defense, Office of the Inspector General, Contracts Awarded for the
Coalition Provisional Authority by the Defense Contracting Command-Washington
, p. 2.
15 Ibid.
16 U.S. Department of Defense, “Secretary Rumsfeld Media Availability with Jay Garner,”
news transcript, June 18, 2003, available at [http://www.defenselink.mil/transcripts/2003/
jun2003.html].

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Key CPA Personnel17

Ambassador Bremer’s deputy was Richard Henry Jones, who was also the U.S.
Ambassador to Kuwait. Ambassador Jones, who was on extended temporary duty
(TDY) in Iraq, was assigned to the CPA position sometime in November 2003.18
Sir Jeremy Greenstock, the United Kingdom’s Special Representative in Iraq,
was referred to, in some news articles and documents, as a deputy to the CPA
Administrator, or was identified as effectively serving as a deputy to Ambassador
Bremer.19 A news bulletin produced by the U.S. Permanent Mission to the United
Nations Office and Other International Organizations in Geneva identified Sir Jeremy
as the CPA deputy.20 Sir Jeremy’s appointment as the United Kingdom’s Special
Representative was announced June 16, 2003, by the Prime Minister’s official
spokesman (PMOS). He replaced John Sawers.21
Other senior CPA officials included Rear Admiral David J. Nash, U.S. Navy
(ret.), who was director of the Program Management Office (PMO), which had
responsibility for monitoring contracts funded by the Emergency Supplemental
Appropriations Act for Defense and the Reconstruction of Iraq and Afghanistan for
FY2004 (FY2004 emergency supplemental).22 Rear Admiral Nash began his duties
in July 2003. Major General Ronald L. Johnson, U.S. Army, was U.S. Deputy to the
PMO, and also served as the commander of the Gulf Region Division of the Army
Corps of Engineers. As of February 2004, Lawrence Crandall was the U.S. Agency
for International Development (USAID) Deputy to the PMO. On January 20, 2004,
Stuart W. Bowen Jr. was appointed as Inspector General by the Secretary of Defense.
Rear Admiral Larry L. Poe, U.S. Navy (ret.), was the Deputy Inspector General.23
17 For information on civilian personnel management under ORHA and CPA, see Special
Inspector General for Iraq Reconstruction, Iraq Reconstruction: Lessons in Human Capital
Management
, Jan. 2006, available at [http://www.sigir.mil/initiatives/lessonslearned.aspx].
18 Information provided by telephone by the Department of State country office for Kuwait
and Bahrain to the author on Mar. 1, 2004.
19 Ewen MacAskill, “Iraq after the War: Blair Envoy Warns Iran on Meddling,” Guardian,
Oct. 23, 2003, p. 4; Philip Stephens, “Now Bush Can Make a Fresh Start,” Financial Times,
Dec. 16, 2003, p. 23; Owen Bowcott and Brian Whitaker, “Trouble Looms after Coalition
Tells Kurds Self Rule Can Stay,” Guardian, Jan. 6, 2004, p. 17; Anton La Guardia, “U.S.
General Will Lead Iraqi Army,” Daily Telegraph, Mar. 11, 2004, p. 12; Patrick Cockburn,
“Bremer Tries to Salvage Appointed-Government Plan Amid Shia Opposition,”
Independent, Jan. 17, 2004, p. 13.
20 Judy Aita, “Negroponte Praises Selection of Brahimi to Head Mission,” Daily Bulletin,
Feb. 10, 2004, p. 1, available at [http://www.cpa-iraq.org/pressreleases/20040210_UN_
back.html].
21 Prime Minister’s Office, “Press Briefing: 11AM Monday 16 June 2003,” available at
[http://www.number-10.gov.uk/output/Page3924.asp].
22 P.L. 108-106; 117 Stat. 1209.
23 Coalition Provisional Authority, Office of Inspector General, “Biographies,” available
from the author. Mr. Bowen’s biography is still available on the agency website at
(continued...)

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Establishment of CPA
Detailed information that explicitly and clearly identifies how CPA was
established, by whom, and under what specific authority, is not readily available.
Instead, there are three alternative explanations for how it was established: one
version suggests that the President established CPA; another alternative suggests that
CPA was established pursuant to a United Nations (U.N.) Security Council
resolution; and the third indicates that it was created by General Tommy Franks, U.S.
Army, who was Commander of the U.S. Central Command (CENTCOM) from July
6, 2000, through July 7, 2003.24 As will be discussed below, these three possibilities
are not necessarily mutually exclusive.
From the inception of CPA in 2003 until April 2005, when a Department of
Justice (DOJ) document stated that General Franks had created CPA, either of the
first two alternatives presented here seemed to be the most likely explanations for the
establishment of CPA. The Justice Department’s statement would seem to answer
the question of who established CPA. However, General Franks’s role was not
revealed publicly until April 2005, nearly two years after CPA was established, and
it is not clear whether there are any written materials that document General Franks
having established CPA and that predate his retirement. Also, the revelation of his
role in CPA followed other, somewhat vague and sometimes contradictory
explanations or comments about CPA’s origin during its 13-month tenure.
Therefore, some might suggest that either of the other two alternatives could still be
a valid explanation for the origin of CPA.
National Security Presidential Directive
It is possible that the CPA, as the organization that succeeded ORHA, was
established by NSPD 24. Another directive, NSPD 36, dated May 11, 2004,
suggests how the President could have used this type of document to establish a
temporary organization within the federal government.25 One purpose of NSPD 36
was to establish organizations that would succeed the CPA: the Iraq Reconstruction
Management Office (IRMO), within the Department of State, and the Project and
Contracting Office (PCO), within DOD.26 The President established both
23 (...continued)
[http://www.sigir.mil].
24 U.S. Department of Defense, American Force Information Service, “Abizaid Set to
Supplant Franks as CENTCOM Commander,” July 2, 2003, available at [http://www.
defenselink.mil/news/Jul2003/n07022003_200307025.html].
25 The document itself is unnumbered. However, an e-mail message from the State
Department’s Bureau of Legislative Affairs to the author on Feb. 22, 2005, identified the
May 11, 2004, directive as NSPD 36.
26 U.S. President (G.W. Bush), “United States Government Operations in Iraq,” National
Security Presidential Directive (unnumbered), May 11, 2004.

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organizations pursuant to 5 U.S.C. § 3161.27 This statutory provision addresses the
employment and compensation of employees by temporary federal government
organizations. Under Section 3161(a), a temporary organization is defined as
a commission, committee, board, or other organization that (1) is established by
law or Executive order for a specific period not in excess of three years for the
purpose of performing a specific study or other project; and (2) is terminated
upon the completion of the study or project or upon the occurrence of a condition
related to the completion of the study or project.
It bears noting that none of the organizations mentioned here — CPA, IRMO, and
PCO — was established by executive order or statute. However, NSPD 36 addressed
this issue in the concluding paragraph:
This NSPD shall be effective immediately, shall constitute an Executive order
solely for purposes of 5 U.S.C. 3161, and shall not be subject to Executive order
11030 of June 19, 1962, as amended.28
It is possible that the language found in NSPD 36 had been used in NSPD 24 to
establish OHRA, and eventually the CPA, to oversee the reconstruction of Iraq.29
In January 2006, the Special Inspector General for Iraq Reconstruction (SIGIR)
issued a report on civilian personnel management under ORHA and CPA. By
confirming that 5 U.S.C. § 3161 was used to hire some of the civilian personnel for
ORHA and CPA, the report suggests that the Administration established an
organization using this provision of the U.S. Code. An excerpt from the relevant
section of the report follows:
The primary statutory provision that was used for employing civilians in Iraq was
Title 5, Section 3161 of the U.S. Code. The 3161 provision enables temporary
organizations to acquire staff through temporary appointments to the excepted
service of the Civil Service. ORHA and CPA used 3161 extensively to hire
civilian personnel
for periods of up to one year (with the possibility of
renewal).... According to a former CPA personnel specialist, the 3161 hiring
authority had long existed under 5 CFR 213.3199, but it had been typically used
to fill boards or commissions. The provision was useful for rapid hiring because
27 P.L. 106-398 (Division A, Title XI, Sec. 1101(a)), Floyd D. Spence National Defense
Authorization Act, FY2001; 114 Stat. 1654, at 1654A-308.
28 U.S. President (G.W. Bush), “United States Government Operations in Iraq,” p. 3.
Executive Order 11030 governs the preparation, presentation, filing, and publication of
executive orders and requires that executive orders be published in the Federal Register. (3
C.F.R. 610-612 (1962).)
29 The legislative history concerning temporary organizations began in 1944, with the
enactment of Public Law 359 during the 78th Congress (31 U.S.C. § 1347). Section 213 of
this statute prohibits the use of appropriated funds for, or by, any agency or entity
established by executive order and “ in existence for more than one year, if the Congress has
not appropriated any money specifically for such agency or instrumentality or specifically
authorized the expenditure of funds by it.” Section 1347 of P.L. 97-258 codified this
provision in Title 31 of the U.S. Code. However, 5 U.S.C. § 3161 supersedes both of these
statutes because it was enacted at a later date.

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it allowed appointments from outside government without the usual competition
required under formal job classifications. The use of 3161 to staff the temporary
stabilization and reconstruction organizations in Iraq appears to have been
unprecedented.30
It is possible to infer, from the following excerpt from a report to Congress
provided by the Office of Management and Budget (OMB), on behalf of the
President, that the President may have played a role in creating the authority.31 Of
particular interest are the statements that the CPA Administrator oversees all non-
military federal government programs and activities in Iraq, and that the President
vested the authority with executive, legislative, and judicial authority.
The Administrator of the Coalition Provisional Authority (CPA) reports to the
President through the Secretary of Defense. He oversees, directs and coordinates
all U.S. Government (USG) programs and activities in Iraq, except those under
the command of the Commander, U.S. Central Command (CENTCOM).
The CPA exercises powers of government temporarily in order to provide for the
effective administration of Iraq, to restore conditions of security and stability, to
create conditions in which the Iraqi people can freely determine their own
political future, ... and facilitating economic recovery, sustainable reconstruction
and development.
The CPA is vested by the President with all executive, legislative and judicial
authority necessary to achieve its objectives, exercised consistent with relevant
U.N. Security Council resolutions, including [U.N. Security Council] Resolution
1483,32 and the laws and usages of war. The CPA Administrator has primary
responsibility for exercising this authority.33
The clearest statement that the U.S. government played a part in establishing the
authority is found in a letter submitted to the President of the United Nations Security
Council by the Permanent Representatives of the United States and the United
Kingdom. Dated two days after Ambassador Bremer was appointed by President
Bush as the Presidential Envoy to Iraq, the letter stated, in part:
30 Special Inspector General for Iraq Reconstruction, Iraq Reconstruction: Lessons in
Human Capital Management
, p. 10. (Italics added for emphasis.)
31 The report responds to a requirement in Section 1506 of the Emergency Wartime
Supplemental Appropriations Act, 2003 (P.L. 108-11; H.R. 1559).
32 U.N. Security Council Resolution 1483, which was adopted by the United Nations
Security Council on May 22, 2003, “lifted civilian sanctions and provided for termination
of the Oil-for-Food Programme within six months, transferring responsibility for the
administration of any remaining activity to the Authority representing the occupying
powers.” (United Nations, Office of the Iraq Programme Oil-for-Food, available at
[http://www.un.org/Depts/oip/background/scrsindex.html]. U.N. Security Council
Resolution 1483 is available at this website.)
33 U.S. Office of Management and Budget, “Report to Congress Pursuant to Section 1506
of the Emergency Wartime Supplemental Appropriations Act, 2003 (Public Law 108-11),”
June 2, 2003 (letter), available at [http://www.whitehouse.gov/omb/legislative].

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In order to meet these objectives and obligations [disarming Iraq and providing
for the humanitarian needs of Iraqis] in the post-conflict period in Iraq, the
United States, the United Kingdom and Coalition partners, acting under existing
command and control arrangements through the Commander of Coalition Forces,
have created the Coalition Provisional Authority, which includes the Office of
Reconstruction and Humanitarian Assistance, to exercise powers of government
temporarily, and, as necessary, especially to provide security, to allow the
delivery of humanitarian aid, and to eliminate weapons of mass destruction.34
While this excerpt can be viewed as an acknowledgment that the United States (and
the United Kingdom) established CPA, it does not explain how the authority was
established, nor does it resolve the question of its organizational agency status.
Government documents supporting the notion that CPA was a federal entity
(which suggests, in turn, that it was created by the President) include two presidential
memoranda. A May 6, 2003, memorandum, as amended by a December 5, 2003,
memorandum, stated, in part:35
In accordance with Presidential direction relating to Iraq relief and
reconstruction, multiple agencies are deployed with the Coalition Provisional
Authority (CPA) and are serving as implementing partners or executing agents
for programs and projects. These agencies will identify funding requirements for
such programs and projects through CPA. OMB will work with CPA to transfer
funds to the appropriate implementing agency.36
The authority’s intimate involvement in the funding process for work done by federal
government agencies in Iraq further suggests that the CPA is a federal entity.

Language in the FY2004 emergency supplemental also stated that the CPA was
part of the federal government. In describing how the apportionment of $18.649
billion was to be carried out, P.L. 108-106 stated:
Funds appropriated under this heading [Iraq Relief and Reconstruction Fund]
shall be apportioned only to the Coalition Provisional Authority in Iraq (in its
34 Sir Jeremy Greenstock, Permanent Representative of the United Kingdom, and John D.
Negroponte, Permanent Representative of the United States, letter to the President of the
Security Council, May 8, 2003, available at [http://www.globalpolicy.org/security/issues/
iraq/document/2003/0608usukletter.htm].
35 The Dec. 5, 2003, memorandum directed that any references in the May 6, 2003,
memorandum to the Office of Reconstruction and Humanitarian Assistance or ORHA be
replaced by “Coalition Provisional Authority” and “CPA,” respectively.
36 U.S. President (G. W. Bush), “Memorandum on Delegation of the Functions of the
President under the Heading ‘Iraq Relief and Reconstruction Fund’ in the Emergency
Wartime Supplemental Appropriations Act, 2003,” Federal Register, May 9, 2003, vol. 68,
no. 90, p. 25275; U.S. President (G. W. Bush), “Transfer of Funds Appropriated to the
President under the heading Operating Expenses of the Coalition Provisional Authority, and
Delegation of the Functions of the President under the heading Iraq Relief and
Reconstruction Fund, in the Emergency Supplemental Appropriations Act for Defense and
for the Reconstruction of Iraq and Afghanistan, 2004,” Federal Register, Jan. 9, 2004, vol.
69, no. 6, p. 1645.

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capacity as an entity of the United States Government), the Department of State,
the Department of Health and Human Services, the Department of Treasury, the
Department of Defense, and the United States Agency for International
Development ...37
According to this excerpt, the authority was an entity of the federal government.

Information provided by CPA itself indicated that its sector program
management offices (SPMOs) were part of the federal government. (The CPA’s
PMO was supported by six SPMOs.) In a written response to a question asked at a
January 21, 2004, pre-proposal conference on contracting opportunities, the CPA
stated that “the Sector Program Management Office (SPMO) is a Government
entity.”38
Yet another organization related to CPA is on record as stating that “the U.S.
government created CPA....”39 The Special Inspector General for Iraq Reconstruction
included this statement in its January 2006 report on civilian personnel management
under ORHA and CPA.
Nonetheless, questions remain regarding how CPA was established, who
established it, the precise nature of its relationship to DOD (including DOD
components) and other federal entities, and whether CPA was a federal agency or
some other type of government organization. Another unanswered question concerns
the scope of CPA’s authority when it was functioning in its capacity as an entity of
the U.S. government.
United Nations Security Council Resolution 1483
A second possibility is that United Nations Security Council Resolution 1483
(2003) was instrumental in creating the authority, a view supported by several
documents released by the executive branch. A solicitation issued by the Pentagon
Renovation Office, on behalf of CPA, for procuring PMO support services, stated in
the “overview”: “The CPA was enacted by the United Nations Security Council
under Resolution 1483 (2003).”40 Other government documents, including the
President’s proposed budget for FY2005 and P.L. 108-106, stated that the authority
was established pursuant to Resolution 1483.41 This statement does not necessarily
contradict the language found elsewhere in the FY2004 emergency supplemental
stating that CPA is an entity of the U.S. government, for the reason discussed above.
37 117 Stat. 1225.
38 Coalition Provisional Authority, “List of Questions and Answers Compiled from a Pre-
Proposal Conference Held on Jan. 21, 2004,” p. 20.
39 Special Inspector General for Iraq Reconstruction, Iraq Reconstruction: Lessons in
Human Capital Management
, p. 36.
40 Pentagon Renovation Office, solicitation W914NS-04-R-0001, Jan. 6, 2004, p. 2.
41 U.S. Office of Management and Budget, Budget of the United States Government —
FY2005, Appendix
(Washington: GPO, 2004), pp. 958-959; P.L. 108-106; 117 Stat. 1226.

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Nevertheless, repeated references to Resolution 1483 might be viewed by some
as implying that the resolution alone authorized or established a coalition-based
organization in Iraq, or might contribute to confusion about the organizational status
of the authority. Relevant portions of the resolution are as follows:
The Security Council, ... Noting the letter of 8 May 2003 from the Permanent
Representatives of the United States of America and the United Kingdom of
Great Britain and Northern Ireland to the President of the Security Council
(S/2003/538) and recognizing the specific authorities, responsibilities, and
obligations under applicable international law of these states as occupying
powers under unified command (the “Authority”), ... Calls upon the Authority,
consistent with the Charter of the United Nations and other relevant international
law, to promote the welfare of the Iraqi people through the effective
administration of the territory, including in particular working towards the
restoration of conditions of security and stability and the creation of conditions
in which the Iraqi people can freely determine their own future.42
While recognizing the responsibility to be borne by the United States and the United
Kingdom in restoring security and stability in Iraq, this resolution did not establish,
or authorize the creation of, a specific organization to carry out this responsibility.
In the words of a former Administrator of the Office of Federal Procurement Policy,
the resolution “noted and recognized, but did not establish CPA.”43
Lending support to the notion that the authority was not a federal agency, but
instead was an amorphous international organization, are statements by the
Department of the Army. In 2003, two protests were filed with the General
Accounting Office (GAO; this agency was renamed the Government Accountability
Office in 2004) by Turkcell Consortium, which challenged CPA’s issuance of
licenses for mobile telecommunications services in Iraq. GAO dismissed both
protests without having to rule on the status of CPA.
In a letter submitted to GAO during the protest process, the U.S. Army Legal
Services Agency was unequivocal in its argument that CPA is not a federal agency:
The CPA is not a Federal agency. Rather, as the HCA [CPA’s Head of
Contracting Activity] explains: The Coalition Provisional Authority (CPA) is a
multi-national coalition that exercises powers of government temporarily in order
to provide for the effective administration of Iraq during the period of
transitional administration, to restore conditions of security and stability, to
create conditions in which the Iraqi people can freely determine their own
political future, including by advancing efforts to restore and establish national
and local institutions for representative governance and facilitating economic
recovery and sustainable reconstruction and development. CPA is vested with
all executive, legislative and judicial authority necessary to achieve its
objectives, to be exercised under relevant U.N. Security Council resolutions,
42 United Nations Security Council, Resolution 1483 (2003), S/RES/1483(2003), May 22,
2003, p. 2, available at [http://www.un.org/Docs/sc/unsc_resolutions.html]. (Italics in
original.)
43 Angela B. Styles, “Seller Beware: Assessing the Risks of Iraq Reconstruction
Contracting,” Federal Contracts Report, Jan. 20, 2004, vol. 81, no. 2, p.65.

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including Resolution 1483 (2003), and the laws and usages of war. This
authority is exercised by the CPA Administrator.
The GAO does not have jurisdiction over this protest because CPA is not a
Federal agency.... The CPA is an organization comprised of members from a
coalition of countries.... CPA is analogous to an organization such as NATO’s
[North Atlantic Treaty Organization’s] Stabilization Force (SFOR) in Bosnia and
Croatia. The SFOR has its own contracting organization, the Theatre Allied
Contracting Office (TACO), which may utilize the services of United States
military personnel. Like the TACO, CPA is not a federal agency. Like NATO
and SFOR, CPA is composed of an international coalition.... UN Security
Council Resolution 1483 (2003) recognizes CPA as “the Authority” to govern
Iraq and grants the CPA discretion to disburse funds in the Development Fund
for Iraq (“DFI”).44
While the CPA did employ individuals from coalition countries, there were at
least two significant differences between CPA and SFOR. The SFOR is overseen by
a multinational organization, the North Atlantic Treaty Organization (NATO), and
it was authorized by United Nations Security Council Resolution 1088 (1996).45 The
Security Council’s resolution explicitly authorized the establishment of SFOR (as it
also did for the precursor entity, the Implementation Force (IFOR)):
The Security Council ... authorizes the Member States ... to establish for a
planned period of 18 months a multinational stabilization force (SFOR) as the
legal successor to IFOR under unified command and control ....46
Given that P.L. 108-106 and other government documents stated that CPA was a
U.S. government entity, the Army’s response raises questions. Arguably, the Army
was concerned that some would assume, precisely because of references to the
authority as a government entity, that CPA was a federal agency. Another possibility
is that the Army, as the executive agent for the authority (discussed below), assumed
responsibility for certain procurement activities and tasks, such as responding to
protests, and thus argued strongly for excluding CPA from the GAO protest process.
Legislative language might contribute to questions about the status of the
authority. The FY2004 emergency supplemental referred to CPA as “an entity of the
United States Government.”47 In the National Defense Authorization Act for
FY2004, Section 1203(b)(1) mentioned “civilian groups reporting to the Secretary
44 Maj. Frank A. March, Department of the Army, United States Army Legal Services
Agency, “Protest of Turkcell Consortium, B-293048,” correspondence to U.S. General
Accounting Office, Oct. 21, 2003, pp. 2- 4.
45 North Atlantic Treaty Organization, “History of NATO-led Stabilisation Force (SFOR)
in Bosnia and Herzegovina,” no date, available at [http://www.nato.int/sfor/docu/
d981116a.htm].
46 United Nations Security Council, Resolution 1088 (1996), Dec. 12, 1996, S/RES/1088,
available at [http://www.nato.int/ifor/un/u961212b.htm].
47 117 Stat. 1225.

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[of Defense], including” ORHA and CPA.48 Section 1203(b)(3) referred to the
“relationship of Department of Defense entities, including” ORHA and CPA.49 The
House report accompanying H.R. 1588 (P.L. 108-136), the National Defense
Authorization Act for FY2004, in its comments on the section that became Section
1203, mentioned “Department of Defense (DOD) civilian and military activities in
post-conflict Iraq.”50 Eschewing the word “agency” in favor of “entity,” “group,”
and “activities” in legislation and congressional documents could be a reflection of
the Administration’s approach, an acknowledgment that CPA’s status was uncertain,
or a sign that Congress agreed that CPA was not an agency.
Documents produced by the Administration and the CPA do not state precisely
how this organization was established. In the preface to the first regulation of the
CPA, dated May 16, 2003, Ambassador Bremer stated: “Pursuant to my authority as
Administrator of the Coalition Provisional Authority (CAP), relevant U.N. Security
Council resolutions, including Resolution 1483 (2003), and the laws and usages of
war ...”51 In a December 2003 memorandum on contracting procedures for the
reconstruction of Iraq, Deputy Secretary of Defense Paul Wolfowitz wrote: “The
Coalition Provisional Authority (CPA) has been established to promote the welfare
of the Iraqi people.”52 Neither statement identifies by whom, or under what authority,
CPA was established.
General Franks
General Tommy Franks’s role in the creation of CPA was revealed in a brief
prepared by Justice Department attorneys in April 2005 in the matter of United States
ex rel. DRC Inc. v. Custer Battles, LLC
(E. Va., No. CV-04-199-A). Custer Battles
(CB) had done work for CPA in Iraq, and former employees of CB alleged in a
lawsuit filed under the False Claims Act (FCA; 31 U.S.C.§§ 3729-3733) that the
company had defrauded the federal government. Attorneys for Custer Battles
responded, in part, that CPA was not a federal agency, so the FCA was not
applicable. Initially, the presiding judge invited the Justice Department to state the
government’s position on whether the FCA applied to CPA. Then, in response to a
second order from the judge, Justice Department attorneys addressed the question,
in a supplemental brief, of whether CPA was a U.S. government entity, agency, or
instrumentality, and they concluded that it was an instrumentality. (See below for
more details.)
48 P.L. 108-136; 117 Stat. 1392 at 1648; H.R. 1588.
49 Sec. 1203(b)(1)-(3) of P.L. 108-136.
50 U.S. Congress, House Committee on Armed Services, National Defense Authorization Act
for Fiscal Year 2004
, H.Rept. 108-106, 108th Cong, 1st sess., May 16, 2003 (Washington:
GPO, 2003), p. 359.
51 Coalition Provisional Authority, “Coalition Provisional Authority Regulation Number 1,”
May 16, 2003, available at [http://www.iraqcoalition.org/regulations/index.html#
Regulations]. (Italics in original.)
52 Paul Wolfowitz, Deputy Secretary of Defense, “Determination and Findings,” Dec. 5,
2003, p. 1, available from author.

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In their supplemental brief, which was also filed in April 2005, the Justice
Department attorneys also offered an explanation of who established CPA:
The CPA was created by the Commander of the Coalition Forces in Iraq, General
Tommy Franks, United States Army, who was also the Commander of the U.S.
Central Command. The establishment of the CPA by the Coalition was formally
recognized by UNSCR [United Nations Security Council Resolution 1483].
Since the Coalition Forces had established and exercised actual authority over
the territory of Iraq, under the laws of war and occupation, the authority of the
defeated Iraqi regime of Saddam Hussein passed into the hands of the Coalition
Forces. General Franks established the CPA under the laws of war to perform
civil government functions in liberated Iraq during the brief occupation.53
This statement by the Justice Department may not settle the question of how
CPA was established, by whom, and under what authority.54 The fact that CPA had
a predecessor in ORHA raises questions about the Justice Department’s explanation
for the origin of CPA. Although ORHA and CPA were responsible for essentially
the same mission in Iraq, and although CPA subsumed, or succeeded, ORHA, the
origins of these two organizations apparently differed. ORHA was established by the
President, through NSPD 24;55 CPA was established (according to the Justice
Department) by the Commander of CENTCOM, “under the laws of war.”56 (As
noted above, the CPA IG stated that OHRA became CPA in May 2003,57 while the
DOD IG indicated that the Deputy Secretary of Defense dissolved ORHA and shifted
ORHA’s functions, responsibilities, and legal obligations to CPA.58) It is unclear
why two different methods were used to create these organizations, and why, with
ORHA already in place and functioning under NSPD 24, it was necessary for the
CENTCOM Commander to establish another, new organization.
While the statement that “the authority of the defeated Iraqi regime of Saddam
Hussein passed into the hands of the Coalition Forces”59 may be accurate, and while
53 Supplemental Brief of the United States in response to the court’s invitation at pp. 6-7,
United States ex rel. DRC, Inc. and Robert Isakson v. Custer Battles, LLC, et al. (E.D. Va.
2004) (No. CV-04-199a).
54 Justice Department attorneys noted in their supplemental brief that the discussion
involving CPA “is solely for the purpose of answering the Court’s question with respect to
the FCA, and not for any other purpose.” (Ibid., p. 2.) Nevertheless, this statement does not
change the fact that the attorneys unequivocally claimed that CPA was established by
General Franks.
55 U.S. Department of Defense, Office of the Inspector General, Contracts Awarded for the
Coalition Provisional Authority by the Defense Contracting Command-Washington
, p. 1.
56 Supplemental Brief of the United States at pp. 6-7.
57 U.S. Department of Defense, Office of the Inspector General, Contracts Awarded for the
Coalition Provisional Authority by the Defense Contracting Command-Washington
, p. 2.
58 Ibid.
59 Supplemental Brief of the United States in response to the court’s invitation at pp. 6-7,
United States ex rel. DRC, Inc. and Robert Isakson v. Custer Battles, LLC, et al. (E.D. Va.
(continued...)

CRS-14
it suggests why General Franks established CPA, the statement appears to overlook
the existence of ORHA. As noted above, ORHA had been created in January 2003,
two months prior to the fall of Baghdad. The authority that passed into the Coalition
Forces’ hands when they invaded Iraq presumably would have been accorded to
ORHA. The supplemental brief apparently fails to mention not only that CPA was
preceded by ORHA, but also that ORHA apparently was still in existence when CPA
was established.
As noted above, it appears that the Justice Department’s supplemental brief
represents the initial disclosure of the then-CENTCOM Commander’s role in
creating CPA. However, the legal brief does not include a source for this statement,
and it does not otherwise indicate that there is any written documentation of this
action. It is not known how General Franks established CPA, or whether he
prepared and signed any document to create CPA. Nevertheless, a CENTCOM
document that appears to be a leaflet that was developed for distribution to the Iraqi
people mentions General Franks’s role in establishing CPA.60 This document, titled
“Freedom Message to the Iraqi People,” dated April 16, 2003, and attributed to
General Franks (his name is included at the end of the message), includes the
following statement: “... I am creating the Coalition Provisional Authority to exercise
powers of government temporarily, and as necessary, especially to provide security,
to allow the delivery of humanitarian aid and to eliminate weapons of mass
destruction.”61 The complete text of this document is at the appendix.
Despite the text included in the April 16, 2003, leaflet, DOD does not appear to
have issued any statement in 2003 documenting General Franks’ decision to establish
CPA.62 The lack of a document that implemented or authorized the creation of CPA
59 (...continued)
2004) (No. CV-04-199a).
60 In its “lessons learned” report on contracting, the Office of the Special Inspector General
for Iraq Reconstruction (SIGIR) refers to General Franks’s message as an “order.” The
SIGIR report did not repeat or affirm General Franks’s claim that he created CPA; rather,
SIGIR noted that “CPA initially was recognized as a discrete organization in a CENTOM
order” issued by General Franks. (Special Inspector General for Iraq Reconstruction, Iraq
Reconstruction: Lessons in Contracting and Procurement
, July 2006, available at
[http://www.sigir.mil/reports/pdf/Lessons_Learned_ July21.pdf], p. 23.) (italics added) It
appears, however, that General Franks’s “Freedom Message to the Iraqi People” is not
consistent with DOD’s definition of an “order.” “Order” is defined as “a communication,
written, oral, or by signal, which conveys instructions from a superior to a subordinate.”
(Department of Defense, Department of Defense Dictionary of Military and Associated
Terms
, Apr. 12, 2001 (as amended through Apr. 14, 2006), available at
[http://www.dtic.mil/doctrine/jel/new_pubs/jp1_02.pdf], p. 395.) The text of Franks’s
message is included in the appendix.
61 General Tommy R. Franks, Commander of Coalition Forces, “Freedom Message to the
Iraqi People,” Apr. 16, 2003, available from the author. This document (and an Arabic-
language version) were provided electronically by U.S. Central Command, Legislative
Liaison, to the author, July 13, 2005.
62 Ambassador Bremer’s appointment as Presidential Envoy to Iraq was the subject of a
(continued...)

CRS-15
also was noted by the federal judge presiding in United States v. Custer Battles, who
wrote: “This proclamation [the April 16, 2003, leaflet] was not followed by any
formal document or order establishing the CPA or defining its legal
responsibilities.”63 Additionally, no mention was made of General Franks’ role in
creating CPA during a ceremony at the White House on December 14, 2004, when
he, Ambassador Bremer, and George Tenet, the former Director of Central
Intelligence, were awarded Presidential Medals of Freedom by the President.64 The
apparent lack of publicly available documentation about the creation of CPA by
CENTCOM, and the fact that disclosure of CPA’s origins was made by the Justice
Department and did not occur until spring 2005, might lead some to question whether
this explanation of CPA’s creation accurately reflects what occurred in May or June
2003.
Selected Characteristics of CPA
The asserted lack of clarity concerning authorizing authority and establishment
of the CPA arguably extended to its status within the executive branch. It is not clear
whether the authority was a federal agency, or could be treated as such. What is
known is that the CPA was neither an executive department nor a government
corporation. Executive departments are identified by statute, and government
corporations are “corporation[s] owned or controlled by the Government of the
United States.”65 If the authority was a federal government entity, it may have been
an independent establishment, which is defined as “an establishment in the executive
branch (other than the United States Postal Service or the Postal Rate commission)
which is not an Executive department, military department, Government corporation,
or part thereof, or part of an independent establishment.”66 If it is determined that the
authority was an independent establishment, CPA also would be considered an
executive agency.67 Other possibilities are that CPA was a component of DOD, or
that it was not a federal government entity. Due to its unusual status, this
examination of certain of its characteristics or features might be instructive.
CPA’s Relationship to the Department of Defense
While it is clear that, ultimately, the CPA Administrator answered to the
President, it is also clear that the Administrator reported to the Secretary of Defense
62 (...continued)
White House press release in May 2003.
63 U.S. v. Custer Battles, 376 F. Supp 2d 617 (E.D. Va. 2005) at 620.
64 White House, Office of the Press Secretary, “President Presents Medal of Freedom,” news
release, Dec. 14, 2004, available at [http://www.whitehouse.gov/news/releases/2004/12/
print/20041214-3.html].
65 5 U.S.C. §§ 101 and 103.
66 5 U.S.C. § 104(1).
67 An “‘executive agency’ means an Executive department, a Government corporation, and
an independent establishment.” (5 U.S.C. § 105).

CRS-16
as well.68 Administratively, Ambassador Bremer and the authority fell under the
Department of the Army. For Ambassador Bremer, this meant that his salary,
Executive Level III, was paid by the Army.69 A report prepared by the Office of
Personnel Management (OPM), dated March 10, 2004, showed that 558 federal
government employees were detailed to CPA. The largest contingents were from the
Department of Defense (455) and the Department of State (85). Other agencies
contributing personnel included the Department of Transportation (2), the
Department of the Treasury (6), the Naval Criminal Investigative Service (1), OPM
(1), the U.S. Navy (2), and unknown (6). Three detailees were ambassadors, 65 were
from the Foreign Service, 411 were identified as “federal civilian workers,” and the
remaining 79 were members of the Senior Executive Service (SES).70 (CPA also
employed individuals from coalition partner countries.71) A document available on
the Army Civilian Personnel On-Line (CPOL) website indicated that all CPA civilian
employees were realigned in 2003 to Army rolls.72
In 2003, the Secretary of the Army was designated the executive agent for
ORHA, and, subsequently, CPA, in memoranda issued by the Deputy Secretary of
Defense.73 Neither memorandum is publicly available, but a third memorandum,
issued by the Deputy Secretary of Defense and dated January 14, 2004, addressed
acquisition and program support for the authority and confirmed the existence of the
previous memoranda:
Pursuant to Section 113 of Title 10, United States Code, the Secretary of the
Army is hereby assigned the authority and responsibility for the provision of
acquisition and program management support to the CPA (Iraq and Washington,
DC) and any successor entity. The Secretary of Defense shall determine and
prioritize the requirements to be supported pursuant to this assignment of
responsibility, as necessary.
68 White House, Office of the Press Secretary, “President Names Envoy to Iraq,”; U.S.
Office of Management and Budget, Report to Congress Pursuant to Section 1506 of the
Emergency Wartime Supplemental Appropriations Act, 2003 (Public Law 108-11)
.
69 Information provided by telephone by the DOD Office of Legislation Liaison to the author
on Feb. 5, 2004.
70 Letter from Kay Coles James, Director, Office of Personnel Management, to Hon. C. W.
Bill Young, Chairman, House Committee on Appropriations, Mar. 10, 2004. Section 599C
of P.L. 108-199 requires the OPM to submit a report to the House and Senate Committees
on Appropriations on the number of employees, by agency, that are detailed to CPA. The
initial report was due February 1, 2004, and quarterly updates were also required.
71 Information provided electronically by CPA’s legislative affairs office to the author on
Apr. 21, 2004.
72 Army Civilian Personnel On-Line, “FY03: The Year in Review,” no date, available from
the author.
73 “Army Assigned Responsibility for Acquisition and Program Management Support for
CPA,” Federal Contracts Report, Jan. 27, 2004, vol. 81, no. 3, p. 80. This article stated
that the memorandum dated May 21, 2003, designated the Secretary of the Army Executive
Agent for the Office of Reconstruction and Humanitarian Assistance and that the
memorandum dated June 21, 2003, did the same for CPA.

CRS-17
For purposes of this memorandum, acquisition support is intended to include the
award, administration and oversight of all contracts, grants, and other acquisition
actions in direct support of the CPA and any successor entity. Program
management support comprises all aspects of project oversight, including
planning, scheduling and execution, as may be required by the scope of work,
directed timelines, and applicable financial management regulations.
All addressees [listed on the memorandum] shall provide support to the Secretary
of the Army, as the Secretary of the Army considers necessary, to carry out this
assignment of responsibility. Services and supplies provided to the CPA in
furtherance of this memorandum shall be made available in accordance with
DoD Instruction 4000.19 and applicable financial management regulations. My
memoranda of May 21, 2003, designating the Secretary of the Army as Executive
Agent for the Office of Reconstruction and Humanitarian Assistance, and June
16, 2003, providing for the exercise of that responsibility in support of the CPA,
are modified accordingly.74

The following description of a DOD executive agent indicates that executive
agents are assigned responsibility for DOD missions, activities, or tasks:
The Head of a DoD Component to whom the Secretary of Defense or the Deputy
Secretary of Defense has assigned specific responsibilities, functions, and
authorities to provide defined levels of support for operational missions, or
administrative or other designated activities that involve two or more of the DoD
Components. The nature and scope of the DoD Executive Agents
responsibilities, functions, and authorities shall ... be prescribed at the time of
assignment [and] ... remain in effect until the Secretary of Defense or the Deputy
Secretary of Defense revokes or suspends them.75
This definition would arguably cast CPA as a DOD component. A broad
interpretation, though, might allow the Secretary, or Deputy Secretary, to appoint an
executive agent for a non-DOD entity or even a non-governmental entity. DOD’s
policy governing the use of executive agents leaves open this possibility.
4.1. The DoD Executive Agent designation shall be conferred when: 4.1.1. No
existing means to accomplish DoD objectives exists. 4.1.2. DoD resources need
to be focused on a specific area or areas of responsibility in order to minimize
duplication or redundancy, or 4.1.3. Such designation is required by law,
Executive order, or Government-wide regulation.76
Aside from the question of whether an executive agent can be assigned to a non-
DOD or non-governmental entity, it appears that item 4.1.1, item 4.1.2, or both might
have applied to the circumstances surrounding DOD and CPA. It seems likely that
74 Paul Wolfowitz, Deputy Secretary for Defense, “Assignment of Responsibility for
Acquisition and Program Management Support for the Coalition Provisional Authority,”
memorandum, Jan. 14, 2004, available at [http://www.acq.osd.mil/sadbu/news/CPA-
OSD00626-04.pdf].
75 Department of Defense Directive 5101.1, DoD Executive Agent, Sept. 3, 2002 (certified
current as of Nov. 21, 2003), p. 2, available at [http://www.dtic.mil/whs/directives].
76 Ibid., p. 3.

CRS-18
item 4.1.3 would not have applied, because no law, executive order, or government
regulation had been enacted, issued, or produced that required or authorized the
Army to serve as executive agent. No mention is made in the Deputy Secretary’s
January 14, 2003, memorandum of which rationale applied to the authority.
Deputy Secretary of Defense Wolfowitz did note that Department of Defense
Instruction Number 4000.19 applied to the provision of supplies and services to the
CPA. This document provides guidance for intragovernmental and interservice
support, which are defined as follows:
Intragovernmental support is support provided by a DoD activity to a non-DoD
Federal activity and vice versa — [it] does not include support provided to or
received from foreign governments.
Interservice support is support provided by one DoD activity to a DoD activity
of another Military Service, Defense Agency, Unified Combatant Command,
Army Reserves, Navy Reserves, Air Force Reserves, Marine Corps Reserves, Air
National Guard, or Field Activity.77
Deputy Secretary Wolfowitz’s memorandum did not indicate whether the
authority received support from the Army under an interservice or an
intragovernmental agreement, which leaves unanswered the question of whether CPA
was part of DOD, or simply attached to it for the purposes of facilitating coordination
with, and receiving support from, the Department of the Army. Nevertheless, DOD
Instruction 4000.19 clarifies that a non-DOD entity may receive support from DOD.
In either case, intragovernmental or interservice agreement, documentation is
required.
Broad areas of recurring interservice and intragovernmental support and
cooperation that do not require reimbursement should be documented with a
memorandum of agreement (MOA) or memorandum of understanding (MOU).
Recurring interservice and intragovernmental support that requires
reimbursement shall be documented on a DD [Department of Defense] Form
1144, “Support Agreement”... , or similar format that contains all the information
required on DD Form 1144. Support that benefits a receiver without creating
additional cost to the supplier (e.g., gate guards, fire protection) may be included
on a DD Form 1144, but must be identified as non-reimbursable. Provision of
a single item or one time service, sales of Defense Business Operations Fund
(DBOF) mission products and services, and intragovernmental sales specifically
directed or authorized by law may be accomplished on the basis of an order or
requisition without preparing a support agreement.78
Apparently, documentation was required for the support agreement between the
Army and CPA. If an applicable document exists and is available to the public, it
might clarify what type of agreement existed between the Army and the authority.
77 Department of Defense Instruction Number 4000.19, Interservice and Intragovernmental
Support
, Aug. 9, 1995, p. 15, available at [http://www.dtic.mil/whs/directives/corres/pdf2/
i400019p.pdf].
78 Ibid., p. 4.

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CPA Office of Inspector General
An Office of the Inspector General was established for CPA by Title III of the
FY2004 emergency supplemental.79 The Secretary of Defense, in consultation with
the Secretary of State, appointed the Inspector General, and the Inspector General
reported to the CPA Administrator.80 As of March 20, 2004, the Office of Inspector
General (OIG) employed 58 persons and had obtained the services of an auditing and
accounting firm.81
In addition to having the duties, responsibilities, and authorities outlined in the
Inspector General Act of 1978 (5 U.S.C. Appendix),82 the CPA Inspector General
(IG) was authorized to “conduct, supervise, and coordinate audits and investigations
of the treatment, handling, and expenditure of appropriated funds by the Coalition
Provisional Authority in Iraq.”83 This involved, for example, monitoring obligations
and expenditures, reconstruction activities, contracts, and transfers of funds and
associated information between and among the CPA and other departments, agencies,
and entities of the federal government.84 It seems that the CPA IG was to be treated
the same as any federal agency’s OIG. The CPA office was to coordinate with the
DOD and USAID Offices of Inspector General.85 Additionally, any federal
department or agency that was asked to provide information or assistance to the CPA
OIG was to do so.86 In his statement on the emergency supplemental, the President
apparently placed some restrictions on CPA’s OIG. He noted that the Inspector
General was to:
refrain from initiating, carrying out, or completing an audit or investigation, or
from issuing a subpoena, which requires access to sensitive operation plans,
intelligence matters, counterintelligence matters, ongoing criminal investigations
by other administrative units of the Department of Defense related to national
security, or other matters the disclosure of which would constitute a threat to
national security. The Secretary of Defense may make exceptions to the
foregoing direction in the public interest.87
79 P.L. 108-106; 117 Stat. 1209, at 1234.
80 Sec. 3001(c) and (e) of P.L. 108-106.
81 Coalition Provisional Authority, Office of Inspector General, Message from the Inspector
General of the Coalition Provisional Authority
, p. 13.
82 P.L. 95-452, Sec. 1; Oct. 12, 1978; 92 Stat. 1101.
83 Sec. 3001(f)(1) and (g) of P.L. 108-106.
84 Sec. 3001(f)(1) of P.L. 108-106.
85 Sec. 3001 (f)(4) and (5) of P.L. 108-106.
86 Sec. 3001(h)(4) of P.L. 108-106.
87 U.S. President (G. W. Bush), “Statement on Signing the Emergency Supplemental
Appropriations Act for Defense and for the Reconstruction of Iraq and Afghanistan, 2004,”
Weekly Compilation of Presidential Documents, vol. 39, Nov. 6, 2003, p. 1549.

CRS-20
The CPA IG was to terminate its operations six months after the “authorities and
duties” of CPA “cease to exist,” which occurred June 28, 2004.88 Instead, Section
1203 of P.L. 108-375, which amended Title III of P.L. 108- 106, redesignated the
CPA IG as the Special Inspector General for Iraq Reconstruction (SIGIR) and made
termination of the office contingent upon the obligation of appropriated funds.89
SIGIR is to cease operations
10 months after the date, as determined by the Secretary of State and the
Secretary of Defense, on which 80 percent of the amounts appropriated or
otherwise made available tot he Iraq Relief and Reconstruction Fund by chapter
2 of title II of this Act have been obligated.90
The Special Inspector General for Iraq Reconstruction reports to both the Secretary
of Defense and the Secretary of State.
Procurement Activities
Appropriated Funds for the Reconstruction of Iraq. The Emergency
Wartime Supplemental Appropriations Act for FY2003,91 which was the first
supplemental to provide funds for the reconstruction of Iraq, was signed on April 16,
2003, prior to the announcement that Ambassador Bremer would be the
Administration’s Presidential Envoy to Iraq. Accordingly, there was no mention of
CPA (or ORHA) in this statute. The $2.475 billion appropriated to the President for
the reconstruction of Iraq could be apportioned only to USAID and the Departments
of Defense, Health and Human Services (HHS), State, and the Treasury.92
The FY2004 emergency supplemental, which was signed by the President on
November 6, 2003, included CPA in the list of organizations to which the Iraq Relief
and Reconstruction Fund could be apportioned.93 The other five organizations in the
list were the ones included in the first supplemental.
While the authority was eligible to receive funds for the reconstruction of Iraq,
apparently it did not award any contracts funded by the FY2004 emergency
supplemental. Deputy Secretary Wolfowitz’s December 5, 2003, memorandum
identifying countries whose companies were eligible to compete for contracts funded
by the FY2004 emergency supplemental also stated that the construction and services
88 Sec. 3001(o) of P.L. 108-106.
89 For additional information on SIGIR, see [http://www.sigir.mil].
90 Sec. 1203(o) of P.L. 108-375.
91 P.L. 108-11; 117 Stat. 559, at 573.
92 “Apportion” refers to a procedure whereby the President, through OMB, distributes
appropriated funds to executive agencies. (31 U.S.C. § 1513(b)(1). Outside the executive
branch, “the official having administrative control of an appropriation available to the
legislative branch, the judicial branch, the United States International Trade Commission,
or the District of Columbia government ... shall apportion the appropriation in writing.” (31
U.S.C. §1513(a).)
93 117 Stat.1225.

CRS-21
contracts funded by the supplemental “are to be awarded by the Coalition Provisional
Authority (CPA) and by the Department of Defense, on behalf of CPA.”94
Solicitations for the major design/build construction contracts were issued by the
U.S. Army Corps of Engineers, the U.S. Army Communications-Electronics
Command (CECOM), and the Naval Facilities Engineering Command. Proposals
were to be submitted to the office that issued the solicitation. Offerors95 also were
required to submit copies of their proposals to the Iraq Reconstruction Contracting
Office, which was located in Alexandria, Virginia. The Pentagon Renovation Office
issued the solicitations for support for the CPA’s Program Management Office
(PMO) and sector PMOs. Proposals were to be submitted to the Pentagon
Renovation Office, but there was no requirement for proposals for the program
management office PMO and sector program management offices (SPMOs) contracts
to be submitted to the Iraq Reconstruction Contracting Office. Solicitations were
issued on January 6, 2004, and by March 26, 2004, all 17 contracts were awarded.96
Apparently, no official explanation as to why the CPA did not issue these
solicitations was offered. A possible factor in the decision to decentralize the
solicitation, evaluation, and award processes might have been the scheduled
termination of the CPA. Knowing that the CPA would terminate operations by June
30, 2004, Administration officials might have chosen the route they did in order to
maintain continuity. Another possible reason why CPA was limited to monitoring
contracts may be that government officials ascertained that the authority did not have
enough personnel, or enough personnel with sufficient experience in the types of
94 Paul Wolfowitz, Deputy Secretary of Defense, “Determination and Findings,” available
from the author. In this document, the Deputy Secretary used the “public interest” exception
(see FAR 6.302-7) to full and open competition as the authority for limiting competition for
reconstruction contracts to firms “from the United States, Iraq, Coalition partners and force
contributing nations.” (Ibid.) It bears noting, however, that the Deputy Secretary of
Defense did not, and does not, have authority to use or apply this exception. Under FAR
6.302-7(c), only the Secretary of Defense, the Secretaries of the Air Force, Army, and Navy,
the Secretary of Homeland Security for the Coast Guard, the Administrator of the National
Aeronautics and Space Administration, and the head of any other executive agency may
exercise this authority, which may not be delegated.
95 An offeror is a business that submits a proposal in response to a government solicitation.
96 The contracts were awarded to AECOM (PMO support, $21.6 million), CH2M
Hill/Parsons (public works and water SPMO support; $28.4 million), Berger/URS
(transportation/communications SPMO support, $8.4 million; security/justice SPMO
support, $8.4 million; buildings/education/health SPMO support, $10.7 million), Iraq Power
Alliance Joint Venture (electrical services SPMO support, $43.3 million), Foster Wheeler
(oil SPMO support, $8.4 million), Fluor AMEC LLC (power generation facilities, $500
million; public works and water — northern region,$600 million; public works and water
— southern region, $500 million), Washington International Inc. and Black and Veatch
(water resources, $600 million), Washington International Inc. (electricity — northern
region, $500 million), Perini Corp. (electricity — southern region, $500 million),
Contrack/AICI/OCI/Archirodon Joint Venture (transportation, $325 million), Lucent
Technologies World Services, Inc. (communications, $75 million), and Parsons Delaware
(buildings, education, and health, $500 million; security, justice, and safety, $900 million).
(Coalition Provisional Authority, Program Management Office, “Another Contract in Place
to Continue Construction in Iraq,” press release, Apr. 2, 2004, available from the author.

CRS-22
work to be done in Iraq, to develop solicitations and evaluate proposals for seven
major sectors, the PMO, and the SPMOs. The fact that CPA needed contractor
support for its PMO and SPMOs tends to support the notion that it did not have
enough resources to perform all of the necessary procurement tasks. A third
consideration might have been the possibility of protests, particularly the possibility
that a contractor would file a protest with GAO challenging the authority’s actions
or decisions concerning the award of a contract. As discussed below, a few
companies did file protests with GAO concerning CPA decisions. Perhaps the U.S.
government wanted to avoid the possibility that additional protests targeting CPA
would be filed with GAO. (As noted below, CPA’s own contracting procedures
applied only to non-appropriated funds, and only allowed for protests to be filed with
CPA officials.)
The former Administrator of the Office of Federal Procurement Policy, in
writing about contracting with the authority, offered another possible explanation of
why government officials chose to have DOD components issue solicitations and
award contracts for the reconstruction of Iraq:
The CPA is not the United States government. Accordingly, if one enters into
a contractual relationship with the CPA, one is not entering into a contractual
relationship with the United States. The rights and remedies available to parties
contracting with the United States will not be available in a contractual
relationship with the CPA. The remedies available to an aggrieved contracting
party will be determined in part by the source of the money through which the
contracting party is paid.97
Government officials may have considered the question of the CPA’s organizational
status and the possibility that a contract with the authority would not be a contract
with the U.S. government. These considerations might have contributed to a
determination that it would not be appropriate for CPA to enter into contracts funded
by appropriated funds.
There is some question as to whether the authority used appropriated funds for
projects involving the reconstruction of Iraq. In a letter it submitted to GAO on the
matter of the Turkcell Consortium protest (see below), the United States Army Legal
Services Agency stated: “The funds CPA is using for contracts are not appropriated
funds.... Even if this action [issuing licenses for mobile telecommunications] was a
procurement that involved the use of funds, CPA would use DFI [Development Fund
for Iraq] funds, not U.S. appropriated funds for its CPA mission.”98 This letter was
written a few weeks before the FY2004 emergency supplemental was enacted, so
possibly the Army was commenting only on conditions at the time. If so, then the
Army’s assertion in the Turkcell Consortium bid protest might not have applied to
subsequent procurement actions.
97 Angela B. Styles, “Seller Beware: Assessing the Risks of Iraq Reconstruction
Contracting,” Federal Contracts Report, Jan. 20, 2004, vol. 81, no. 2, p. 65. (Italics in
original.)
98 Maj. Frank A. March, Department of the Army, United States Army Legal Services
Agency, “Protest of Turkcell Consortium, B-293048,” correspondence to U.S. General
Accounting Office, Oct. 21, 2003, pp. 3 and 4.

CRS-23
Other evidence suggests that CPA used appropriated funds for reconstruction
activities. A news article that mentioned the activities of the CPA’s Program Review
Board (see below) indicates the authority spent appropriated funds:
From minutes published by the CPA’s Program Review Board, it appears that the
CPA has the power to shift monies between appropriated funds accounts and the
Development Fund of Iraq (which contains funds from both Iraqi and foreign
donated sources): “#352, Restore Iraqi Infrastructure, $711M. [million] The
Board considered the request from Task Force RIO [Restore Iraqi Oil] for
changing the funding source from appropriated funds to the Development Fund
of Iraq a previously approved request (#352, total amount approved $962M).
$251M was already provided from the Natural Resource Risk Remediation Fund
(NRRRF), an appropriated funds account. TF RIO indicated that $711M is
outstanding and required but of that amount $466M was immediately required
to complete projects under Phase I. The Board identified $500M as remaining
available from two appropriated accounts — the Iraq Reconstruction and Relief
Fund (IRRF) and the NRRRF and therefore the requirement was approved to
come from the appropriated funds. A new vote may be required for the
remaining amount $211M but this was deferred.
Agenda Item #398 (‘Police equipment - Of the $90M authorized (funding source
to be either appropriated or DFI), the CPA’s Ministry of Interior team needs an
immediate disbursement of $5M. This request is for the reprogramming of $5M
from appropriated or DFI (to be determined) to vested funds. The request was
recommended for approval.99
The latter passage also shows that CPA might have reprogrammed funds among the
various funding sources available to it (see below).
CPA Solicitations. CPA issued solicitations, which means it also awarded
contracts, for some time. In early March 2004, the list on CPA’s website included
solicitations for aerators, AK-47 assault rifles, sand bags, portable X-Ray units,
battery cells, vehicles, berets, turbine parts, a police records management system,
information technology products, agricultural equipment, satellite data
communications, and railroad equipment, parts, and services.100 It is unknown what
funds CPA used to purchase items and services listed in its solicitations. If CPA
used Iraqi funds, then CPA Memorandum Number 4 applied. Iraqi funds were
defined in this memorandum as:
Funds under the control of the [Coalition Provisional] Authority consisting of (a)
proceeds from Iraqi state-owned property that has been vested or seized in
accordance with applicable law and made available to the CPA to assist the Iraqi
people and assist in the reconstruction of Iraq; and (b) funds in the Development
Fund for Iraq, the establishment of which is noted in Resolution 1483 (2203).
As used in this Memorandum, “Iraqi Funds” do not include funds provided
through the appropriations process of Coalition member governments (for
99 Christopher R. Yukins and Mohab Khattab, “Iraq Reconstruction Awards Should Not Be
Immune from Review,” Federal Contracts Report, Nov. 18, 2003, vol. 80, no. 18, p. 512.
100 The list is no longer available on the CPA website.

CRS-24
example, funds provided directly to the CPA by the governments of the United
States or the United Kingdom).101
If CPA used appropriated funds, it would seem reasonable for authority personnel to
have followed the Federal Acquisition Regulation (FAR), which governs federal
agency procurement activities. A review of three CPA solicitations showed that two
(sand bags and information technology) included numerous references to the FAR
(sand bags and information technology products). The third solicitation, for berets,
included only one reference to the FAR. Without additional, detailed information
about the authority’s contracting activities, it is difficult to ascertain the source of
funds and the guidance used for each procurement. The former Administrator of the
Office of Federal Procurement Policy (OFPP) has stated that “no rules [are] in place
for contracting by the CPA with U.S. appropriated funds.”102 In the absence of a
clear statement on the organizational status of the CPA, however, this assessment
may or may not be accurate.
Program Review Board. Ambassador Bremer established, through
Coalition Provisional Authority Regulation Number 3, a Program Review Board
(PRB), which reported directly to him. The board’s general duty was to be
“responsible for recommending expenditures of resources from the Development
Fund for Iraq and other resources identified” elsewhere in the regulation. In
developing funding plans, the PRB recommends disbursements of appropriated
funds, “Iraqi property lawfully vested in the U.S. Treasury,” funds, cash, or other
financial instruments owned by Iraq or the (former) regime, and the Development
Fund for Iraq. A news article asserted that the PRB “really controls only the Iraqi
money.”103 However, as noted above, a news article indicated the PRB was involved
in spending appropriated funds. The board was also responsible for proposing
“principles and standards for expending funds for the relief and recovery of Iraq in
a fair, consistent and transparent manner, through contracts or otherwise.”104
The board consisted of a chairman, who was appointed by the CPA
Administrator; the directors of economic policy, civil affairs policy, the USAID —
Iraq mission, operations, and security affairs (all of whom apparently were CPA
personnel); and authorized representatives of the commander of coalition forces, the
Iraqi Ministry of Finance, the United Kingdom, Australia, and the chairman of the
Council for International Coordination. If the PRB took action on any matter relating
to the disposition of appropriated funds, then the voting membership was also to
include authorized representatives of DOD, and Departments of the Treasury and
101 Coalition Provisional Authority, “Contract and Grant Procedures Applicable to Vested
and Seized Iraqi Property and the Development Fund for Iraq,” Coalition Provisional
Authority Memorandum Number 4, pp. 3-4.
102 Styles, “Seller Beware: Assessing the Risks of Iraq Reconstruction Contracting,” p.65.
103 Jackie Spinner and Ariana Eunjung Cha, “U.S. Decisions on Iraq Spending Made in
Private,” Washington Post, Dec. 27, 2003, p. A15.
104 Coalition Provisional Authority, “Coalition Provisional Authority Regulation Number
3, Program Review Board,” June 18, 2003, p. 7, available at [http://www.cpa-iraq.org/
regulations/].

CRS-25
State. Additionally, the status of the authorized representatives of the Iraqi Ministry
of Finance, the United Kingdom, Australia, and Council for International
Coordination shifted from voting to nonvoting on the disposition of appropriated
funds. Others who were permitted to attend board meetings as nonvoting members
included the CPA Comptroller and General Counsel; Program Coordinator of the
board; and authorized representatives of OMB, the Office of the Secretary of
Defense, the International Monetary Fund, the World Bank, the United Nations
Special Representative of the Secretary General for Iraq, and the International
Advisory and Monitoring Board.105
Protests. Protests challenging the authority were filed with GAO. On October
14, 2003, GAO received a bid protest from Turkcell Consortium, which challenged
the award of mobile telecommunications licenses in Iraq by CPA. This was the first
protest filed that involved the authority. The protest was dismissed because it was
based on speculation, not factual grounds, that errors occurred in the award
process.106 Turkcell Consortium filed a second protest on October 27, 2003, which
was also dismissed by GAO because the procurement did not involve “the provision
of property or services to the federal government.”107
While CPA was the organization that awarded the contract for mobile
telecommunications licenses, GAO’s second bid protest decision identified the
cognizant agency as “Department of the Army, for the agency.”108 Reportedly, the
U.S. Army was also listed as the cognizant agency on GAO’s docket for the first
protest, and the solicitation number was listed as “unknown.”109 Citing a dismissal
request submitted by the Army, GAO stated, in its decision on the second protest:
“The Department of the Army argued that our Office lacks jurisdiction to hear this
protest because the CPA is not a ‘federal agency.’”110 Due to the fact that both
protests were dismissed on other grounds, there was no need for GAO to resolve the
question of “whether the CPA is a federal agency for purposes of our [GAO] bid
protest jurisdiction under CICA [Competition in Contracting Act of 1984].”111 In its
second decision on this case, however, GAO explained its authority to decide bid
protests and described circumstances under which it could have jurisdiction to handle
bid protests concerning CPA:
105 Ibid., pp. 3-4.
106 Melanie I. Dooley, “GAO Dismisses Turkcell Protest of Iraq Telecom Licenses; Turkcell
Files New Protest after Receiving Debriefing,” Federal Contracts Report, BNA, Inc., Oct.
28, 2004, vol. 80, no. 15. p. 405.
107 Melanie I. Dooley, “GAO Dismisses Turkcell’s Second Protest of Iraq Telecom Licenses
but Leaves Door Open,” Federal Contracts Report, Nov. 18, 2003, vol. 80, no. 18, p. 507.
108 U.S. General Accounting Office, Turkcell Consortium bid protest, file B-293048.2, Nov.
12, 2003, p. 1.
109 Melanie I. Dooley, “GAO Dismisses Turkcell Protest of Iraq Telecom Licenses; Turkcell
Files New Protest after Receiving Debriefing,” Federal Contracts Report, Oct. 28, 2003,
vol. 80, no. 15, p. 405.
110 U.S. General Accounting Office, Turkcell Consortium bid protest, p. 2.
111 Ibid., p. 1; 31 U.S.C. §§ 3551-3556.

CRS-26
The authority of our Office to decide bid protests is based on the Competition in
Contracting Act of 1984 (CICA) ... and encompasses “a written objection by an
interested party to a solicitation or other request by a federal agency for offers
for a contract for the procurement of property or services.” Our jurisdiction does
not turn on whether appropriated funds are involved ... or on whether the
competition requirements of CICA apply.
We note ... that even if we ultimately determine that the CPA is not a federal
agency, we may well assume jurisdiction if the challenged procurement is
conducted on the CPA’s behalf by an entity that is a federal agency (such as the
Department of the Army).... In any event, we would also consider a request by
the CPA for our Office to consider protests outside the framework of CICA.112
CPA’s award of a contract to Nour USA to equip the Iraqi armed forces and the
Iraqi civil defense corps also was the subject of protests. A solicitation was issued
on November 11, 2003, and CPA (which was explicitly identified as the contracting
activity in the press release) received 19 bids.113 In a press release dated January 31,
2004, CPA announced that it had awarded a contract for $327 million to Nour USA.
In mid-February, it was reported that two companies, Cemex Global Inc. and
Bumar Group, had filed separate protests, which were combined by GAO into one
protest, challenging the awarding of this contract to Nour USA. Among their
concerns were (1) the relatively low cost of the Nour USA proposal, which was $231
million lower than the Bumar Group’s proposal; (2) the fact that Nour’s president
was A. Huda Faouki, who allegedly is a friend of Ahmad Chalabi, who had been a
member of the Iraqi Governing Council; and (3) the belief that Nour USA, which
apparently was established in May 2003, had no experience in performing the work
necessary to fulfill the terms of the contract.114 Subsequently, four additional protests
were filed with GAO. In each of the six protests, the Department of the Army was
listed as the cognizant agency and the solicitation number (FY5866-04-R-0001) was
included.115 Reportedly, CPA indicated on March 3 that it would reevaluate all
timely proposals and make a new source selection decision.116 In light of the
government’s decision to reevaluate proposals, GAO dismissed all protests.117 In a
March 5, 2004, press release, the CPA PMO briefly described plans for rectifying the
situation, which involved the Army, but not CPA:
112 U.S. General Accounting Office, Turkcell Consortium bid protest, pp. 2-3.
113 Coalition Provisional Authority, Program Management Office, “U.S.-Iraqi-Polish Group
Receives Security Equipment Contract,” press release, Jan. 31, 2004.
114 Joe Harper, “Polish Arms Company Challenges CPA Award to U.S. Firm, Alleges Bid
Evaluation Unfair,” Federal Contracts Report, Feb. 24, 2004, vol. 81, no. 7, p. 199; Melanie
I. Dooley, “Coalition Provisional Authority to Review Nour, Other Offerors to Equip Iraq
Army,” Daily Report for Executives, Mar. 5, 2004, no. 43, p. A-24.
115 The file numbers assigned by GAO to these protests were B-293676.001 through B-
293676.006.
116 Dooley, “Coalition Provisional Authority to Review Nour, Other Offerors to Equip Iraq
Army,” p. A-24.
117 Ibid.

CRS-27
Today the Army announced it will terminate its contract with Nour, USA, to
equip the New Iraqi Army. Protests were filed subsequent to the award to Nour.
Protests are part of a transparent and fair procurement process. As a result of an
internal review, the Army has determined there were irregularities in this specific
contract action, and took appropriate measures to assess the validity of the
protests.
The Army will conduct a complete re-solicitation; schedule release of the
solicitation is to be determined. The Army wants to ensure the process is
transparent, fair and conduct in an expeditious manner.118
Reportedly, control of the procurement process transferred from CPA to the Army
Materiel Command.119
No explanation was provided as to why the Army terminated the contract when
the press release that announced the award of a contract to Nour identified CPA as
the contracting activity (see above). A possible question could be posed, for
example, why CPA, if it was the organization that awarded the contract initially, did
not cancel the contract. While the Department of the Army provided support to CPA,
particularly in the area of acquisition, it is unclear how, why, or under what
circumstances, a federal agency might cancel a contract awarded by another entity
and assume responsibility for subsequent procurement activities.
Neither CPA nor DOD disclosed why the Department of the Army, and not the
authority, was listed on GAO’s bid protest docket for protests involving contracting
actions apparently undertaken by CPA. As for reconstruction contracts funded by the
FY2004 supplemental, the fact that DOD components, such as the Army Corps of
Engineers and the Naval Facilities Engineering Command, were the contracting
activities would seem to preclude the possibility that an offeror would file a protest
with GAO challenging CPA. Considering the Department of the Army’s assertion,
during the protest by Turkcell Consortium, that CPA was not an agency, it suggests
that there might have been some (unknown) advantages to shielding CPA from
protests.120 Without further information about CPA’s procurement process and
organizational status, it is unclear whether any advantages existed, and, if so, what
they might have been.
It is unknown whether any offerors filed protests under the provisions of
Coalition Provisional Authority Memorandum Number 4, which, as noted above,
provided procurement rules for what may be referred to collectively as Iraqi, or non-
appropriated, funds. The paragraph on protests stated:
A contractor wishing to object to the terms of a solicitation, the termination of
a solicitation, the award of a contract, or the termination of the award of a
118 Coalition Provisional Authority, Program Management Office, “U.S. Army Terminates
Contract to Equip New Iraqi Army,” Mar. 5, 2004.
119 Abby Bowles, “Army Materiel Command Put in Charge of Resoliciting Iraq Army
Equipment Contract Awarded to Nour,” Federal Contracts Report, Mar. 16, 2004, vol. 81,
no. 10, p. 279.
120 March, “Protest of Turkcell Consortium, B-293048,” pp. 2- 4.

CRS-28
contract, shall present the matter to the Contracting Officer for an initial
decision. The contractor shall state to the Contracting Officer the basis for the
protest. If the contractor does not agree with the Contracting Officer’s initial
decision, the Contractor may appeal the initial decision to the Head of
Contracting Activity, CPA, for resolution. The decision of the Head of
Contracting Activity, CPA, shall be the final decision in the matter.121
Not only did this provision fail to provide for any sort of external, independent
review or adjudication process (such as provided by GAO), it also omitted any
requirements or procedures for CPA personnel to respond in a timely fashion, or to
provide an explanation for their decision.
Appropriated Funds for the Operating Expenses of CPA. The
FY2004 supplemental (P.L. 108-106) appropriated $933 million to the President for
the authority’s operating expenses. Expenses could have included “personnel costs,
transportation, supply, equipment, facilities, communications, logistics requirements,
studies, physical security, media support, promulgation and enforcement of
regulations, and other activities needed to oversee and manage the relief and
reconstruction of Iraq and the transition to democracy ....”122 These funds are “to
remain available until September 30, 2005: Provided, That the appropriation of funds
under this heading shall not be construed to limit or otherwise affect the ability of the
Department of Defense to furnish assistance and services, and any other support, to
the Coalition Provisional Authority.”123 In a memorandum dated December 5, 2003,
the President transferred these funds to the Secretary of Defense:
The funds appropriated to the President under the heading Operating Expense of
the Coalition Provisional Authority in the Emergency Supplemental
Appropriations Act for Defense and for the Reconstruction of Iraq and
Afghanistan, 2004 (Public Law 108-106), or in any subsequent appropriation
under this heading, are transferred to the Secretary of Defense, for an account
designated Operating Expenses of the Coalition Provisional Authority,
International Reconstruction and Other Assistance, Army.124
Information is not available to explain whether the CPA Administrator had access to
these funds, or if he relied on the Secretary of Defense for purchasing supplies and
equipment needed by CPA.
121 Coalition Provisional Authority, “Contract and Grant Procedures Applicable to Vested
and Seized Iraqi Property and the Development Fund for Iraq,” p. B-3.
122 117 Stat. 1226.
123 Ibid.
124 U.S. President (G. W. Bush), “Transfer of Funds Appropriated to the President under the
heading Operating Expenses of the Coalition Provisional Authority, and Delegation of the
Functions of the President under the heading Iraq Relief and Reconstruction Fund, in the
Emergency Supplemental Appropriations Act for Defense and for the Reconstruction of Iraq
and Afghanistan, 2004,” Federal Register, Jan. 9, 2004, vol. 69, no. 6, p. 1645.

CRS-29
Regulatory Authority
The CPA Administrator exercised rule-making authority, which apparently was
derived from the executive authority invested in CPA by the President. Unlike the
heads of federal agencies, however, the Administrator did not follow the
Administrative Procedure Act (APA), which governs informal and formal rule
making.125 For example, the authority did not announce any proposed, interim, or
final regulations in the Federal Register.
The first regulation issued by CPA outlined the Administrator’s authority in
issuing regulations, memoranda, orders, and public notices:126
In carrying out the authority and responsibility vested in the CPA, the
Administrator will, as necessary, issue Regulations and Orders. Regulations
shall be those instruments that define the institutions and authorities of the CPA.
Orders are binding instructions issued by the CPA. Regulations and Orders will
remain in force until repealed by the Administrator or superseded by legislation
issued by democratic institutions of Iraq. Regulations and Orders issued by the
Administrator shall take precedence over all other laws and publications to the
extent such other laws and publications are inconsistent. The Administrator may
also from time to time issue Public Notices.... The Administrator may issue
Memoranda in relation to the interpretation and application of any Regulation or
Order.127
Enacting a regulation, order, memorandum, or public notice was accomplished by the
Administrator signing off on, or approving, the document. Subjects of these
documents included:
! Regulations: Development Fund for Iraq, Program Review Board,
Governing Council of Iraq, Council for International Coordination,
Iraq Property Claims Commission, and International Donor
Assistance;
! Orders: Penal Code, Management and Use of Iraqi Public Property,
Prohibited Media Activity, Regulation of Oil Distribution, Creation
of a New Iraqi Army, and Status of the Coalition, Foreign Liaison
Missions, Their Personnel and Contractors;
! Memoranda: Criminal Procedures, contract and Grant Procedures,
Implementation of De-Baathification Order No. 1, Implementation
of Weapons Control Order 3, and Appointment of Deputy Ministers;
125 5 U.S.C. §§ 551-559; 60 Stat. 237. See CRS Report RL31839, The Federal Regulatory
Process: An Overview
, by Gary L. Galemore.
126 A list of CPA regulations, orders, memoranda, and public notices is available at
[http://www.iraqcoalition.org/regulations/index.html], visited Feb. 24, 2005.
127 Coalition Provisional Authority, “Coalition Provisional Authority Regulation Number
One,” p. 2.

CRS-30
! Public notices: Managing Financial Resources, Regarding a
Responsible Iraqi Media, Regarding the Council for International
Coordination, Regarding Public Incitement to Violence and
Disorder.128
CPA Organization Chart
An undated CPA organization chart is shown in Figure 1.129 While several sub-
units are missing, and it is possible that the actual organization varied from this
depiction, the chart provides insight into the authority’s chain of command and
organizational scope. Organizational subunits and positions not shown on the chart
include the Deputy Administrator, Office of Inspector General, Program
Management Office and Sector Program Management Offices, legislative affairs staff
(which was located in the Washington, DC, metropolitan area), and contracting
offices (apparently, there were two contracting offices, one each in Iraq and the
Washington, DC, metropolitan area).
128 Coalition Provisional Authority, “CPA Official Documents” website, available at
[http://www.cpa-iraq.org/regulations/index.html#Regulations], visited Feb. 24, 2005.
129 Organization chart provided electronically by CPA’s legislative affairs office to the
author on Feb. 24, 2004.

CRS-31
Figure 1. Coalition Provisional Authority
Counselors
Chairman, Council for Interntional Cooperation
JTF-7
Administrator
(CIC)
(U.S. Army)
Military Liaison Officers
(LNOs)
Deputy CIC
Chief of Staff
Contributing Countries
(COS)
Intelligence
Director
General C

ounsel
Humanitarian
Nongovernmental
Military Aides/Personal Staff
Executive Secretariat
Affairs
Organizations
(NGOs)
Operational Support Group
Financial Oversight
UN Specialized
Office of Policy Planning
Agencies
Steering Group
Director Office of
Director
Director
Director of Operations
Director of Economic
Director of Private
Management &
Oil Policy
Governance
and Infrastructure
Development
Sector Development
Budget
Industry &
Electricity
Comptroller
Central
Marketing
Infrastructure &
Minerals
Bank
Utility Policy
Economic
State-owned
Oil Operations
Public Works
Program Review
Policy
enterprises
Tiger Team
Board
Finance
(SOEs)
Oil Pipeline
Management
Planning and
Financial
Transport &
Debt
Security
Budgeting
Institutions
Trade
Communication
Restructuring
Policy Guidance
Private Sector
Production
Regional
Agriculture
Initiatives
Advisors
Sales
Commercial Attache/
Senior Advisors
Housing
Business Center
Governor level
Irrigation
Privitization Policy
Director
Director
Corporate
Director
Director
Director
U.S. Agency for
Strategic
Sponsorship
Civil Affairs
Interior Affairs
Security Affairs
International
Communications
Development -Iraq
Culture
Spokesman,
(USAID)
Education
Customs
Civilian Affairs
New Iraqi Army
Enforcement
Foreign Affairs
Disaster Assistance
(NIA)
Press Office
Health
Response Team
Immigration
Higher Education
Information
(DART)
Justice
Operations
Labor & Social Affairs
Police
Reconstruction
Spokesman,
Religious Affairs

Military Affairs
Youth

CRS-32
Statutory Reporting Requirements Concerning CPA
and the Reconstruction of Iraq
Even prior to the inception of the CPA, Congress established reporting
requirements concerning efforts to reconstruct Iraq. Table 1 lists significant
reporting requirements concerning this effort and, in particular, CPA.

CRS-33
Table 1. Statutory Reporting Requirements Concerning the CPA and the Reconstruction of Iraq
Responsible Official or
Summary of Content of
Statute (date of enactment)
Recipient(s)
Deadline(s)
Office
Report
P.L. 108-11, Sec. 1506(a)
President
House and Senate
Not later than 45 days after
1. Description of duties,
(April 16, 2003)
Committees on
date of enactment.
roles, and responsibilities of
Appropriations
U.S. government agencies,
foreign governments, and
international organizations.
2. A strategy for coordinating
the activities of these entities.
3. Cost estimates associated
with such activities and a
strategy for distributing
responsibility for paying
costs associated with
reconstruction activities.
P.L. 108-11, Sec. 1506(b)
President
House and Senate
Not later than 90 days after
1. Separate lists of
(April 16, 2003)

Committees on
date of enactment and every
reconstruction activities that

Appropriations
90 days thereafter until Sept.
are anticipated, or were
30, 2004.
initiated or completed.
2. Cost estimates for
conducting proposed
activities and source of
funds.
3. Updated list of financial

CRS-34
Responsible Official or
Summary of Content of
Statute (date of enactment)
Recipient(s)
Deadline(s)
Office
Report
pledges and contributions
made by foreign
governments or international
organizations.
P.L. 108-106, Sec. 2202(b)
CPA Administrator, or
1. House Committees on
Not later than seven calendar
Justification of the use of
(Nov. 6, 2003)
agency head
Appropriations, Government
days before the award of a
other than full and open

Reform, and International
contract under other than full
competition procedures, a
Relations
and open competition
description of the scope of
2. Senate Committees on
procedures.
the contract, a description of
Appropriations, Government
[Sec. 2202(b) does not
the process the agency used
Affairs, and Foreign
include an expiration date.]
in identifying and soliciting
Relations
offers, the amount of the
contract, and justification and
approval documents.
P.L. 108-106, Sec. 2203
CPA Administrator ,or
Publish in the Federal
Not later than seven days
Amount and scope of the
(Nov. 6, 2003)
agency head
Register and post on the CPA
before the date on which a
contract, how contractors
website.
contract is entered into for
were identified and solicited,
contracts awarded under
justification and approval
other than full and open
documents.
competition procedures.
[Sec. 2203 does not include
an expiration date.]
P.L. 108-106, Sec. 2207
Director, OMB, in
House and Senate
Not later than January 5,
1. Proposed uses of funds for

CRS-35
Responsible Official or
Summary of Content of
Statute (date of enactment)
Recipient(s)
Deadline(s)
Office
Report
(Nov. 6, 2003)
consultation with CPA
Committees on
2004. Updated reports are to
Iraq relief and reconstruction
Administrator and the House
Appropriations
be submitted to the
2. Distribution of duties and
and Senate Committees on
committees every three
responsibilities regarding
Appropriations
months. Sec. 2207 expires on
reconstruction projects
October 1, 2007.
among U.S. government
agencies
3. Funds provided by foreign
governments and
international organizations
4. Foreign assets seized or
frozen.
P.L. 108-106, Sec. 2215(a)
CPA Administrator
1. House and Senate
Initial report due within 30
Iraqi oil production, oil
(Nov. 6, 2003)
Committees on
days after date of enactment.
revenues, and uses of oil
Appropriations
Subsequent reports due on a
revenues.
2. Post on CPA’s website
monthly basis until
September 30, 2006.
P.L. 108-106, Sec. 3001(i)(1)
CPA Inspector General
1. Senate Committees on
Not later than March 30,
A detailed statement of all
and (4), (j)
Appropriations, Armed
2004, and every calendar
obligations, expenditures,
(Nov. 6, 2003)
Services, and Foreign
quarter thereafter.
and revenues associated with
Relations
[Apparently, this requirement
reconstruction and
2. House Committees on
will continue until OIG
rehabilitation activities in
Appropriations, Armed
expires, which will happen
Iraq (including the operating
Services, and International
six months after CPA is
expenses of CPA and a
Relations
dissolved. (Sec. 3001(o).)]
discussion of how CPA used

CRS-36
Responsible Official or
Summary of Content of
Statute (date of enactment)
Recipient(s)
Deadline(s)
Office
Report
3. Post on CPA website
other than full and open
4. CPA Administrator
competition procedures).
P.L. 108-106, Sec. 3001(i)(3)
CPA Inspector General
1. Senate Committees on
Not later than June 30, 2004,
Summary of the activities of
and (4), (j)
Appropriations, Armed
and semiannually thereafter.
the OIG in the previous six
(Nov. 6, 2003)
Services, and Foreign
[Apparently, this requirement
months (for example,
Relations
will continue until OIG
significant problems, abuses,
2. House Committees on
expires, which will happen
and deficiencies, and OIG’s
Appropriations, Armed
six months after CPA is
recommendations for
Services, and International
dissolved. (Sec. 3001(o).)]
corrective action).
Relations
3. Post on CPA website
4. CPA Administrator
P.L. 108-136, Sec. 1203
Secretary of Defense
Congress
Not later than 90 days after
Range of infrastructure
(Nov. 24, 2003)
date of enactment.
reconstruction, civil
administration, humanitarian
assistance, interim
governance, and political
development activities
undertaken in Iraq by DOD
officials and those civilians
reporting to the secretary. A
A required element is a
discussion of the evolution of
the organizational structure

CRS-37
Responsible Official or
Summary of Content of
Statute (date of enactment)
Recipient(s)
Deadline(s)
Office
Report
of the civilian groups
(ORHA and CPA) reporting
to the Secretary.
P.L. 108-199, Sec. 599C
OPM
House and Senate
Initial report due February
Number of detailees, by
(Nov. 25, 2003)
Committees on
1, 2004. Subsequent reports
agency, that are detailed to
Appropriations
due every quarter until May
CPA.
2005.

CRS-38
Status and Characteristics of CPA as
Related to the False Claims Act (FCA)

A lawsuit filed under the False Claims Act (FCA; 31 U.S.C. §§ 3729-3733), and
unsealed in 2004, revealed that, as part of its defense, Custer Battles, LLC (CB),
contended that CPA was not a federal agency. Because the FCA applies only to the
submission of false or fraudulent claims to the government, Custer Battles argued
that if CPA were not part of the government, the FCA would not apply. (CPA has
been identified as the contracting agency for two contracts awarded to Custer Battles
involving the Baghdad International Airport (BIAP) and the Iraqi Currency Exchange
(ICE).)130 In United States ex rel. DRC Inc. v. Custer Battles, LLC (E. Va., No. CV-
04-199-A), two former employees of CB alleged “that security contractor Custer
Battles (CB) submitted $50 million in fraudulent contract claims” to the federal
government.131 Custer Battles argued that CPA was not part of the U.S. government
and that it (CB) was paid with seized funds and DFI funds, which meant, therefore,
that the U.S. government was not involved in these contracting activities and U.S.
government funds were not expended.
Although some may concur with the judge’s 2006 analysis of the status of CPA
(see below), arguably the significance of Custer Battles, aside from the outcome, may
have more to do with the insight provided by Department of Justice attorneys and
Judge T.S. Ellis, III.132 In a brief dated April 1, 2005, and submitted to Judge Ellis,
DOJ attorneys examined two issues related to financial transactions involving Custer
Battles and the BIAP and ICE contracts:
Thus, the specific issue to be determined is whether the money which defendants
[Custer Battles] requested from the CPA via their invoices under these two
130 Brief of the United States in response to the court’s invitation at p. 19, United States ex
rel. DRC, Inc. and Robert Isakson v. Custer Battles, LLC
, et al. (E.D. Va. 2004 ) (No. CV-
04-199a).
131 Martha A. Matthews, “District Court Sets Feb. 10 Hearing on Whether FCA Reaches
Coalition Provisional Authority Contracts, Development Fund for Iraq Monies,” Federal
Contracts Report
, Jan. 11, 2005, p. 24. In addition to the lawsuit filed by two former
employees, the Air Force suspended Custer Battles effective Sept. 30, 2004. (Excluded
Parties List System, available at [http://epls.arnet.gov].) As reported in the Legal Times, the
Air Force suspension memorandum stated that the company had “purchased cabins, trucks,
and equipment and created false leases between CB and the sham companies, making it
appear that the sham companies were leasing the goods to the CPA through CB. The
scheme allowed CB to lease the goods to the CPA at prices exceeding the original cost of
the goods.” (Jason McLure, “How a Contractor Cashed in on Iraq,” Legal Times, Feb. 28,
2005, p. 13.)
132 The Department of Justice (DOJ) is permitted to join a suit filed under the FCA, but it
has been reported that the department declined in 2004 to join the lawsuit filed against
Custer Battles.(McLure, “How a Contractor Cashed in on Iraq,” p. 13.) Subsequently, in
December 2004, Judge T. S. Ellis III, who heard the case in the U.S. District Court for the
Eastern District of Virginia, invited the federal government “to file ... a brief setting forth
the government’s position with respect to whether the FCA [False Claims Act] applies to
false claims made or presented to the CPA....” (McLure, “How a Contractor Cashed in on
Iraq,” p. 13.)

CRS-39
contracts was to be paid out, provided or approved by the United States
Government. The answer lies in the nature of the funds used to fund these two
contracts. The second issue is whether the claims were presented to U.S.
Government officials.133
The Department of Justice determined that the U.S. government possessed,
controlled, and/or administered the funds used to pay Custer Battles; the U.S.
government paid out, approved, or provided these funds; and Custer Battles had
presented claims for funds to “an officer or employee of the United States
Government or to a member of the Armed Forces of the United States.”134 Following
from these determinations, the Justice Department attorneys concluded that
Custer Battles’s claims presented to the CPA under the BIAP and ICE contracts
would violate FCA if the claims are shown to have been knowingly false because
those claims were for funds in which the U.S. had an interest or exercised certain
dominion and were to be paid out, provided or approved by the United States and
they were ultimately presented to an officer or employee of the United States
government.135

In response to an order from the U.S. district court, dated April 12, 2005, Justice
Department attorneys filed a supplemental brief that addressed the question of
whether CPA was a U.S. government entity, agency, or instrumentality for the
purposes of the FCA. In their supplemental brief, the attorneys emphasized several
times that determining the status of CPA was unnecessary, yet they did present a set
of criteria for determining whether CPA was part of the U.S. government for the
purposes of the False Claims Act.136 Their criteria and excerpts from their responses
follow:
How and under what circumstances was the entity created? The CPA was
created by the Commander of the Coalition Forces in Iraq, General Tommy
Franks, United States Army, who was also the Commander of the U.S. Central
Command. The establishment of the CPA by the Coalition was formally
recognized by UNSCR [United Nations Security Council Resolution] 1483.
Is the entity subject to the general supervision and direction of the Executive
Branch? Is its head appointed by the President and confirmed by the Senate?
The CPA Administrator was subject to the direction of the President.
133 Brief of the United States at p. 27.
134 Brief of the United States at pp. 28-30, 34-35, 37, 39.
135 Ibid., p. 40.
136 As reported in the Washington Post, “The briefs came after multiple requests from
[Judge] Ellis, who chided the Justice Department ... for only reluctantly weighing in on the
case. Ellis said it may be because the government doesn’t want to expose itself to liability
for the CPA’s actions. [Justice Department attorney Michael F.] Hertz acknowledged that
the government had written its briefs in the case ‘as narrowly as [it] could’.” (Griff Witte,
“Judge Considers Whistle-Blowers’ Iraq Contracting Suit,” Washington Post, May 13, 2005,
p. E3.)

CRS-40
Administrator Bremer served as Presidential Envoy and reported to the President
through the Secretary of Defense.
Is the entity’s funding or its capital formed or replaced out of the public treasury?
And are any gains returned to the public treasury? The CPA’s operating funds
were appropriated by Congress.
Are all of the entity’s officers and other personnel employees of the United
States? Many if not most officers and employees of the CPA were employees of
the United States. Others were employees of other member states of the
Coalition.
Are there close budgetary, auditing and fiscal controls that resemble those
imposed on the ordinary government agency? While Congress initially imposed
no close budgetary, auditing and fiscal controls over the CPA operations with
regard to the DFI [Development Fund for Iraq] that resemble those imposed on
the ordinary government agency ... , Congress created the Office of Inspector
General for the CPA to perform those types of oversight functions.
Is the structure of the entity simply an administrative device established for the
purpose of carrying out a federal program with public funds? The CPA was the
administrative device that the Coalition created under the laws and usages of war
to perform civil government functions in liberated Iraq during the brief period of
occupation. As an active member of the Coalition, the United States played an
important role in, and had certain responsibilities for, the occupation, which it
chose to fulfill through creation of and participation in the CPA. The CPA’s
structure was not established by Congress, and thus, the structure is not the
typical congressionally created administrative device to fulfill a government
function.137
In reaching their determination that CPA was an instrumentality of the U.S.
government, the Justice Department attorneys wrote:
... two factors tip the scale in favor of the conclusion that the CPA should be
deemed to be an instrumentality of the United States for purposes of the False
Claims Act. First is the nature of the appointment and supervision of
Ambassador Bremer as Presidential Envoy and Administrator of the CPA. All
authority of the CPA rested in the Administrator, and Ambassador Bremer was
employed by the United States, served at the pleasure of the President, and was
under the supervision of the President and the Secretary of Defense. Second,
coupled with the status of Ambassador Bremer, is the fact that all of the money
used for the two contracts at issue in this case was spent only on the authority
and control of an officer or employee of the United States or a member of the
Armed Forces of the United States.... Thus, while we emphasize again that the
answer to the Court’s latest question on the nature of the CPA is not necessary
to determine whether or not defendants violated the FCA when they presented
claims to the CPA under the two contracts at issue in this litigation, we
137 Supplemental Brief of the United States at pp. 6-12.

CRS-41
nevertheless conclude that the CPA is an instrumentality of the United States for
purposes of the False Claims Act.138
In July 2005, Judge Ellis issued an opinion, noting first that, if CPA had been
a U.S. government agency, the question of whether the FCA applied to CPA contract
actions “would be largely resolved.”139 However, the judge went on to note that “the
essential nature of the CPA is shrouded with ambiguity ... the CPA’s origins are
difficult to pin down, as there is no formal document — whether statute, United
Nations Security Council resolution, or other organic document — that plainly
establishes the CPA or provides for its formation. “140 Near the end of his opinion,
the judge suggested that the question of CPA’s status might need to be addressed
again at some later date: “Although it initially appeared otherwise, it now appears
unnecessary to reach and decide at this time whether the CPA is an instrumentality
of the United States .... [T]he dispute as to the nature of the CPA may ultimately
prove to be material ....”141
Judge Ellis then turned to the question of the source and ownership of the three
funds in question — vested funds, seized funds, and the Development Fund for Iraq
(DFI)142 — and determined that the FCA applies to vested and seized funds, but it
does not apply to the DFI.143 Specifically, he ruled that “any request submitted to the
CPA for payment from Seized or Vested Funds constitutes a ‘claim’ within the
meaning of the FCA. Requests for payment from funds in the DFI, however, were
requests for Iraqi funds and thus did not constitute an FCA ‘claim.’” Judge Ellis’s
ruling permitted the case against Custer Battles to go forward — because vested and
seized funds were used to pay the BIAP contract, and seized funds were used, in part,
to pay for the ICE contract — and, in March 2006, it was reported that a jury found
that CB had “submitted $3 million in false claims against funds seized by the United
States ....”144 However, in August 2006, Judge Ellis issued a second opinion in
response to Custer Battles’ request for a directed judgment overturning the jury’s
verdict. He ruled in favor of Custer Battles, noting that the “relators did not prove
that the claims were presented to the United States.”145
138 Ibid., pp. 13-14.
139 Custer Battles, 376 F. Supp. 2d at 620.
140 Ibid.
141 Custer Battles, 376 F. Supp. 2d at 620 and 649. (Italics in original.)
142 Vested funds are “Iraqi funds [that were] confiscated by the President and vested in the
Department of the Treasury.” Seized funds are “Iraqi state assets, primarily in the form of
currency and negotiable instruments, [that were] seized by the Coalition Forces occupying
Iraqi territory.” The Development Fund for Iraq includes proceeds from the U.N. “Oil for
Food” program, revenues from the sale of Iraqi oil and gas, international donations, and
repatriated Iraqi assets. (Custer Battles, 376 F. Supp. 2d at 623 and 626.)
143 Ibid.
144 Martha A. Matthews, “Jury Finds Custer Battles Made $3M in False Claims under One
Iraq Contract,” Federal Contracts Report, vol. 85, no. 10, p. 283.
145 U.S. v. Custer Battles, No. 04-199, 2006 U.S. Dist. LEXIS 58217 at *2 (E.D. Va. Aug.
(continued...)

CRS-42
In crafting his 2006 opinion, Judge Ellis concluded that it was necessary to
address the question of CPA’s status. After revisiting the analysis of CPA included
in his 2005 opinion, the judge wrote:
... [T]he result of that analysis is clear — although the CPA was principally
controlled and funded by the U.S., this degree of control did not rise to the level
of exclusive control required to qualify as an instrumentality of the U.S.
government. See Rainwater, 356 U.S. at 592-54. In fact, the evidence clearly
establishes that it was created through and governed by multinational
consent....146

Custer Battles has yielded two views of the status of CPA: DOJ attorneys
determined, for the purposes of the FCA, that it was an instrumentality of the U.S.
government, but Judge Ellis reasoned that it was not. Additionally, at least one
alternative explanation still exists regarding the creation of CPA, which was
discussed above. That is, the President may establish an organization under 5 U.S.C.
§ 3161. However, without access to NSPD 24, which apparently created, or
authorized the establishment of, ORHA, and which also may have been the
instrument under which CPA was created, it is difficult to ascertain whether this
could be a valid alternative explanation, or the definitive explanation.
Yet another possibility is that CPA was a hybrid organization, meaning that it
had multiple origins. Perhaps, then, the seemingly contradictory explanations
actually are a reflection of the organization’s hybrid status. Furthermore, if CPA was
a hybrid organization, could this mean that it was part U.S. government organization
and part multinational organization? If so, how might this arrangement have affected
how CPA operated, what would the implications have been for CPA’s activities, and
to whom was CPA accountable?
The differing interpretations offered by Justice Department attorneys and Judge
Ellis and the questions surrounding NSPD 24 highlight the difficulties inherent in
attempting to discern the true origins of CPA. Thus, it appears that the question of
how CPA was established, by whom, and under what circumstances remains
unanswered, at least for some.
Discussion of CPA
The status of this organization remains open to question. A letter exists that
states that the United States, and the United Kingdom, created the authority; in 2005,
145 (...continued)
16, 2006). The term “relator” refers to a private individual who may “bring a lawsuit on
behalf of the United States, where the private person has information that the named
defendant has knowingly submitted or caused the submission of false or fraudulent claims
to the United States.” (U.S. Department of Justice, “False Claims Act Cases: Government
Intervention in Qui Tam (Whistleblower) Suits,” n.d., available at
[http://www.usdoj.gov/usao/pae/Documents/fcaprocess2.pdf], p. 1.)
146 U.S. v. Custer Battles, 2006 U.S. Dist. LEXIS 58217 at *31.

CRS-43
Justice Department attorneys identified General Franks as the individual who
established CPA; and the possibility exists that the organization’s origins are to be
found in NSPD 24. No explicit, unambiguous, and authoritative statement has been
provided that declares how CPA was established, under what authority, and by
whom, and that clarifies the seeming inconsistencies among alternative explanations
for how CPA was created.
Perhaps this ambiguity allowed the authority to perform multiple roles, each
with its own chain of command, stakeholders or constituents, funding, and
accountability policies and mechanisms. A statement in the FY2004 emergency
supplemental — “in its [CPA] capacity as an entity of the United State government”
— suggested that U.S. government entity is only one of CPA’s roles. Other roles
might have included temporarily aiding in the governing of Iraq and serving as part
of a coalition. Possibly, the mix of arrangements allowed CPA to operate with
greater discretion and more authority, and have access to more resources, than if it
had been solely a federal agency, or an arm of the United Nations.147 CPA personnel
also might have been able to work more efficiently and effectively under this mix.
By operating under more than one set of laws, regulations, and policies, CPA
possibly could have expanded the scope and reach of the organization’s authority
beyond what it would be otherwise. For example, the CPA Administrator drafted the
regulations, orders, memoranda, and public notices that applied to Iraq; and the
Program Review Board had jurisdiction over four funding sources, including
appropriated funds. An advantage of having the CPA treated as part of the
Department of Defense is that the chain of command ran through the executive
branch, which would not have been the case if CPA were purely an international
organization or coalition.
147 In a briefing on contracting programs in Iraq, Lawrence Di Rita, Principal Deputy
Assistant Secretary of Defense for Public Affairs, stated: “We’re in a war, we’re in a global
war on terror. We have — many of the restrictions on how money is appropriated and spent
are based on rules and statutes that have developed over a course of time that was not a
period of war. So we’ve got a certain disconnect between the need to spend money quickly
now, and we’ve got certain funds available to do that — the CERP [Commanders
Emergency Response Program] is a pot of money that’s got fewer restrictions, relatively
speaking, attached to it. It is certainly understandable that a military commander who just
knows if he had $10 million he can address some issues, isn’t going to necessarily be the one
who’s patient enough to sort through all the peacetime restrictions on the use of funds.
That’s somebody else’s job; people are doing that. These restriction are real, they were put
in place for a very good reason. But they’re restrictions that bear some scrutiny now that
we’re trying to address a problem that is real time; and it’s not only a real-time problem, it’s
a real-time problem where people are being killed.... But I can tell you that the people who
are responsible, who have that more — who have that broader view of how this money is
allocated and what those restrictions are, are working through the problem in a very
aggressive way — Ambassador Bremer, General Abizaid, General Sanchez.... We have a
lot of restrictions on the way some money can be spent, fewer restrictions on the way other
money can be spent, and we’re trying our best to kind of make those determinations all the
time.” (Rear Admiral David J. Nash (ret.), Director, CPA Program Management Office, and
Lawrence Di Rita, Principal Deputy Assistant Secretary of Defense for Public Affairs,
“Briefing on Contracting Programs,” news transcript, Mar. 10, 2004, available at
[http://www.defenselink.mil/transcripts/archive.aspx].)

CRS-44
Billing itself as an international coalition, while eschewing the label “federal
agency,” might be construed as an effort to make the organization more palatable, at
least symbolically, to Iraqis and others. For example, the CPA website address ended
“.com” and the PMO website ended “.net.” United States government website
addresses typically end “.gov.” Furthermore, the Iraqi flag is the only flag that
appeared on the two websites. No flags from coalition countries were displayed.

Potential drawbacks of this arrangement were that the lines of authority and
accountability could have become tangled, or even obscured. CPA personnel
possibly could have found it difficult to understand and delineate clearly — on a
daily basis — the organization’s different roles and associated funds, laws, and
rules.148 Personnel might have been hampered by this tangle of resources, laws, and
documents, and could have found themselves engaging in questionable, and perhaps
unethical or criminal, activities. This scenario also could have proven challenging for
organizations that attempted to monitor CPA and its activities. When the authority
made a decision or expended funds, it might not have been clear to external parties
under what authority it was acting. Without transparency, the CPA might have given
the appearance of shifting funds, personnel, and tasks among different roles. Further
compounding the problem, oversight initiatives might have been met with the
response that the activity in question was carried out under an authority over which
the oversight body — Congress — had no jurisdiction.
While greater transparency possibly could have helped to clarify CPA’s role(s),
knowing how CPA was established and under what authority would go a long way
in helping to determine whether it was a federal agency, the scope of its authority,
and the forms, types, and mechanisms of accountability to which it was subject.
These questions remain relevant even after CPA’s dissolution on June 28, 2004, for
questions remain about what it did, how it spent money, and what it accomplished.
While information gleaned from CPA personnel would be potentially useful in the
near future, it also could be useful in the long-term in informing any future efforts to
provide aid to countries faced with similar problems.
148 In testimony provided to the Senate Committee on Homeland Security and Governmental
Affairs, the Special Inspector General for Iraq Reconstruction suggested that the multitude
of procurement rules was problematic. Under the heading “Policy and Process Key
Lessons,” he advised: Establish a single set of simple contracting regulations and procedures
that provide uniform direction to all contracting personnel in contingency environments.
The contracting process in Iraq reconstruction suffered from the variety of regulations
applied by diverse agencies, which caused inconsistencies and inefficiencies that inhibited
management and oversight. (U.S. Congress, senate Committee on Homeland Security and
Governmental Affairs, statement of Stuart W. Bowen, Jr., Special Inspector General for Iraq
Reconstruction, unpublished hearing, 109th Cong., 2nd sess., Aug. 2, 2006, available at
[http://hsgac.senate.gov/_files/080206Bowen.pdf].)

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Post-CPA Organizations
Iraq Reconstruction Management Office (IRMO)
and Project and Contracting Office (PCO)

On June 28, 2004, the Coalition Provisional Authority ceased operations and the
United States established diplomatic relations with the Iraqi government.149 Two
organizations were established by National Security Presidential Directive (NSPD)
36, dated May 11, 2004, to carry on some of the work of the CPA: the Iraq
Reconstruction Management Office (IRMO), within the Department of State; and a
Project and Contracting Office (PCO), within DOD.150 IRMO is responsible for
“facilitat[ing] the transition in Iraq.”151 The PCO
manages the $18.4 billion appropriated by the U.S. Congress [P.L. 108-106] to
support the reconstruction of Iraqi infrastructure. This office is responsible for
all activities associated with program, project, asset, construction and financial
management of that portion of the reconstruction effort undertaken by the U.S.152
Office for Reconstruction and Stabilization
In 2004, the Department of State established the Office of the Coordinator for
Reconstruction and Stabilization (S/CRS) pursuant to Section 408 (Division D) of
P.L. 108-447, the FY2005 Consolidated Appropriations Act. The office is
responsible for, among other things, monitoring and inventorying the non-military
resources and capabilities of executive agencies, monitoring unstable situations
around the world, and planning for response efforts to crises in other countries or
regions.153
Conclusion
The Coalition Provisional Authority represented a multinational effort to rebuild
Iraq, restore stability, and aid in establishing an interim Iraqi government. While its
mission statement was fairly clear, other aspects of the authority were more obscure,
particularly how it was established, under what authority, and by whom (within the
U.S. government). Available information about the authority found in materials
149 U.S. Mission Iraq, International Press Center, Office of Strategic Communications,
“Ambassador Negroponte Arrives in Baghdad,” news release, June 28, 2004, received by
email, June 28, 2004.
150 U.S. President (G.W. Bush), “United States Government Operations in Iraq,” p. 3.
151 Ibid., pp. 2-3.
152 Iraq Project and Contracting Office, “About PCO,” n.d., available from the author. The
url for the PCO has remained the same: it is [http://www.rebuilding-iraq.net].
153 For additional information, see CRS Report RS22031, Peacekeeping and Post-Conflict
Capabilities: The State Department’s Office for Reconstruction and Stabilization
, by Nina
M. Serafino and Martin A. Weiss.

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produced by the Administration alternatively (1) denies that it was a federal agency;
(2) states that it was a U.S. government entity or instrumentality; (3) suggests that it
was enacted under United Nations Security Council Resolution 1483; (4) refers to it,
and OHRA, as “civilian groups ... reporting to the Secretary [of Defense]”;154 (5)
states that it was created by the United States and United Kingdom; and (6) asserts
that it was established by the then-Commander of CENTCOM. Without a clear,
unambiguous statement that declares the CPA’s organizational status, clarifies what
its relationship was with DOD and other federal agencies, and addresses the
competing explanations for how it was created, various questions are left
unanswered, including whether, and to what extent, CPA might be held accountable
for its programs, activities, decisions, and expenditures.
154 Sec. 1203 of P.L. 108-136.

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Appendix
This is the text of the document issued by General Tommy R. Franks on April
16, 2003, to the Iraqi people. The heading or title of the message is “Freedom to the
Iraqi People.”
Peace be upon you. Coalition Forces in Iraq have come as liberators, not as
conquerors. We have come to eliminate an oppressive and aggressive regime
that refused to comply with UN Security Council resolutions requiring the
destruction of weapons of mass destruction. The Coalition is committed to
helping the people of Iraq heal their wounds, build their own representative
government, become a free and independent people and regain a respected place
in the world. We will ensure that Iraq’s oil is protected as a national asset of and
for the Iraqi people. Iraq and its property belong to the Iraqi people and the
Coalition makes no claim of ownership by force of arms. Coalition forces
respect the Iraqi people, their religious practices, history and culture, and will
safeguard Iraq’s unity and territorial integrity.
We are working with the international community to ensure the delivery of
humanitarian assistance and to promote law and order so that Iraqis can live in
security, free from fear. We are establishing the stability that will allow early
progress toward political freedom and economic prosperity. Our stay in Iraq will
be temporary, no longer than it takes to eliminate the threat posed by Saddam
Hussein’s weapons of mass destruction, and to establish stability and help Iraqis
form a functioning government that respects the rule of law and reflects the will,
interests, and rights of the people of Iraq. Meanwhile, it is essential that Iraq
have an authority to protect lives and property, and expedite the delivery of
humanitarian assistance to those who need it. Therefore, I am creating the
Coalition Provisional Authority to exercise powers of government temporarily,
and as necessary, especially to provide security, to allow the delivery of
humanitarian aid and to eliminate weapons of mass destruction. To facilitate
these objectives, I proclaim the following:
Members of the armed forces and security organizations shall lay down their
arms, stay away from their weapons, and remain in place. They shall obey the
orders of the nearest Coalition military commander. All other Iraqi should
continue their normal daily activities; officials should report to their places of
work until told otherwise. All those engaged in the delivery of essential services
should return to their jobs. The Arab Socialist Renaissance Party of Iraq (Hizb
al-Ba’th al-Arabi al-Ishtiraki al-Iraqi) is hereby disestablished. Property of the
Ba’th Party should be turned over the Coalition Provisional Authority. Saddam
Hussein’s intelligence and security apparatus, the Al-Mukhabarat al-Iraqiyya, is
hereby deprived of all powers and authority. All Iraqis are not free to express
their views without fear of retribution. At an appropriate time, free elections will
make Iraqis self-governing in local, regional, and soon, national affairs. All
parties and political groups may participate in Iraq’s political life, except those
who advocate or practice violence. Iraqis must not seek revenge. There will be
a just legal process that will safeguard the honor and dignity of the Iraqi people.
The Coalition Provisional Authority will seek a fair and prompt solution to the
problem of displaced persons and refugees. There will be a legal, organized
process to address restitution of homes that have been seized by the former
regime. The Coalition will work with Iraqis to set up a commission to deal with
such claims. I call upon Iraqis to inform Coalition Forces regarding the location
of weapons of mass destruction or related materials, facilities where such

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weapons are made, and individuals connected to weapons of mass destruction.
All records concerning these activities should be preserved. Iraqis should not
pass weapons of mass destruction to terrorists or terrorist organizations. I call
upon Iraqis to inform Coalition Forces regarding the location of: foreign fighters
and terrorists; members of the regime’s security apparatus; and individuals who
have perpetrated crimes against humanity or war crimes. All records concerning
these activities should be preserved. Rewards may be provided for especially
important information on these matters. All barriers to free movement of people
and goods, including illegal roadblocks and checkpoints, must come down. We
will work with regional leaders, entities, and governments that are committed to
peace and democracy to integrate them into the Coalitions’ activities. Coalition
Forces are here to ensure safety and security, and to help the people of Iraq create
a better future for their country. We pledge our support to all Iraqis who seek
Iraq’s freedom and prosperity, and the blessings of peace and security.
16 April 2003
General Tommy R. Franks
Commander of Coalition Forces155
155 General Tommy R. Franks, Commander of Coalition Forces, “Freedom Message to the
Iraqi People,” Apr. 16, 2003, available from the author.