ASBCA 59184

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Kellogg Brown & Root Services, Inc. ) ASBCA No. 58175 ) Under Contract No. DAAA09-02-D-0007 ) APPEARANCES FOR TIIE APPELLANT: Margaret T. Brenner, Esq. John T. Klug, Esq. Mark A. Font, Esq. Schirrmeister Diaz-Arrastia Brem LLP Houston, TX APPEARANCES FOR THE GOVERNMENT: E. Michael Chiaparas, Esq. DCMA Chief Trial Attorney Carol L. Matsunaga, Esq. Senior Trial Attorney Defense Contract Management Agency Carson, CA OPINION BY ADMINISTRATIVE JUDGE SCOTT ON CROSS-MOTIONS FOR SUMMARY JUDGMENT Kellogg Brown & Root Services, Inc. (KBR), appealed under the Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109, from the contracting officer's (CO's) final decision asserting an $11,483,487 claim against it for subcontractor costs paid to KBR under a task order {TO) issued under its subject indefinite delivery indefinite quantity (IDIQ) contract with the U.S. Army for logistical support. KBR moved to dismiss the appeal for lack of jurisdiction on the ground that the government's claim had accrued more than six years before the CO's decision and was barred by the CDA's six-year statute of limitations. 41 U.S.C. § 7103(a)(4)(A). The government opposed and requested a hearing on the jurisdictional issue, which the Board conducted in August 2014. In December 2014 the Court of Appeals held in Sikorsky Aircraft Corp. v. United States, 773 F.3d 1315 (Fed. Cir. 2104), that the CDA's statute oflimitations was not jurisdictional. In supplemental briefing to address Sikorsky, appellant asserted, inter alia, that the Board should treat its motion as one for summary judgment. Despite some arguments to the contrary in briefing, both parties now contend that there are no material facts in dispute on the six-year limitations issue 1 and we concur. Because discovery has occurred and there has been a hearing, under the circumstances of this appeal we treat 1 This was confirmed in a 27 January 2015 joint teleconference, post-briefing. appellant's motion as one for summary judgment on the statute of limitations question and the government's opposition as a cross-motion for summary judgment on that issue. STATEMENT OF FACTS (SOF) FOR PURPOSES OF Tiffi MOTIONS 1. Effective 14 December 2001, the U.S. Army awarded the subject IDIQ contract to Brown & Root Services pursuant to the Army's Logistics Civil Augmentation Program (LOGCAP). On 1 August 2003 the contract was novated to KBR, a subsidiary of Kellogg Brown & Root, Inc. 2 The contract, hereafter sometimes "LOGCAP III," required KBR, among other things, to provide combat services support, including dining facility (DFAC) services, for overseas contingency operations. 3 TOs could be issued on a firm-fixed-price or cost-reimbursement basis. (R4, tab 1; compl. and answer~ 1O; app. mot. at 6-7, ~ 1; gov't opp'n at 4, ~ 1) 2. The contract incorporated Federal Acquisition Regulation (FAR) 52.216-7, ALLOWABLE COST AND PAYMENT (MAR 2000) (R4, tab 1 at 364), which provided in part that the government would pay invoiced amounts determined to be allowable by the CO under FAR Subpart 31.2, including certain payments to subcontractors. See FAR 52.216-7(a) and (b)(1 )(ii)(A)(l ). 3. Effective 13 June 2003 the Army issued cost-plus-award-fee TO No. 59 to KBR, for logistics and life support services necessary to support Operation Iraqi Freedom. The performance period, as extended, expired on 30 April 2005. The Defense Contract Management Agency (DCMA) administered the TO. (R4, tab 2; app. mot. at 7, ~ 2; gov't opp'n at 4-5, ~ 2) 4. Statement of Work (SOW), Change 5, incorporated into TO No. 59 by Modification (Mod.) No. 06, effective 3 October 2003, required KBR to provide DFAC services at over 25 Iraqi sites, including Qaiyara Mosul West, site H-3. The SOW, paragraph 1.0, provided that services for each site were specified "in accordance with the site population" (R4, tab 3 at 63). For site H-3 the SOW specified a minimum of 5,200 personnel. Under SOW, paragraph 1.4, unless otherwise specified, all SOW increases, decreases or modifications were to be directed by the administrative contracting officer (ACO).