Kellogg Brown & Root Services, Inc. ( 2018 )

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 THE APPELLANT: Jason N. Workmaster, Esq.
Raymond B. Biagini, Esq.
Covington & Burling LLP
Washington, DC
APPEARANCES FOR THE GOVERNMENT: Arthur M. Taylor, Esq.
DCMA Deputy Chief Trial Attorney
Carol Matsunaga, Esq.
Senior Trial Attorney
Defense Contract Management Agency
Carson, CA
OPINION BY ADMINISTRATIVE JUDGE SCOTT
ON APPELLANT'S MOTION TO AMEND
Kellogg Brown & Root Services, Inc. (KBR) has filed "Appellant's Motion to Amend
the Board's March 15, 2018 Judgment," referring to the Board's March 15, 2018 post-hearing
decision in this appeal, Kellogg Brown & Root Services, Inc., ASBCA No. 58175, 18-1 BCA
i1 37,006. KBR asks the Board to amend its decision that "KBR is to remit $11,233,117 to the
government, plus interest," id. at 180,233, to state that "while the Board has found that the
[g]overnment is entitled to [that amount plus interest], that amount is not due and owing
because it is offset by a larger amount that the [g]ovemment owes KBR" (mot. at 2). The
Defense Contract Management Agency (DCMA) opposes KBR's motion.
The Parties' Contentions
KBR alleges that its motion is akin to one to correct a judgment under FED. R. CIV.
P. 60, Relief from a Judgment or Order. It does not consider its motion to be a request for
reconsideration. KBR asserts that, although the Board ruled that KBR "must reimburse
the government" for the costs KBR incurred due to its failure to follow government
direction to reduce a site headcount under its contract to provide dining facility services in
Iraq, 18-1BCAi137,006 at 180,233, the government otherwise owes KBR over $150
million in incurred costs. KBR states that it understands that the government does not
dispute its entitlement to at least $3 3 million. Therefore, according to KBR, the Board
should amend its decision to account for the offset amount said to be due to KBR. KBR
submits the declaration of Scott Booth, a project manager, in support of its financial
claims.
DCMA alleges that there is no legal or factual support in the record for KBR's
proposed amendment, citing Board Rule 19(a), which provides that "[d]ecisions of the
Board will be made solely upon the record." DCMA asserts that Mr. Booth's declaration is
not part of the record and is not supported by it or any other documentation. DCMA
contends that KBR should follow the normal contract invoicing process and the
government will make determinations on cost allowability. DCMA appends declarations
from the procurement contracting officer (PCO) and the administrative contracting officer
that they are not familiar with the $33 million amount to which KBR alleges the
government does not dispute entitlement. The PCO notes that KBR has submitted a
proposal for contract closeout that includes $40 million in legal costs but that the
government has not yet made allowability determinations. He states that any undisputed
amounts owed to KBR should be paid through the Defense Finance and Accounting
Service and the routine invoicing process.
KBR replies essentially that, regardless of the precise amount the government owes
KBR, it exceeds the amount the Board ruled KBR owes the government. KBR appends a
supplemental declaration by Mr. Booth that the $33 million in costs he mentioned in his
original declaration are included in the $40 million proposal for contract closeout to which
the PCO referred in his declaration. Mr. Booth declares, among other things, that the
Defense Contract Audit Agency has audited about half of the costs and found them to be
allowable and that KBR is confident that the government will not contest at least the
amount that is at issue here.
In its sur-reply DCMA continues to oppose KBR' s motion to amend and disputes that
FED. R. CIV. P. 60 applies.
Discussion
The Board does not have a rule such as FED. R. CIV. P. 60. The Board is not bound
by the Federal Rules, but we may look to them for guidance, particularly when our rules do
not directly address a matter. TTF, L.L.C., ASBCA No. 58494, 13 BCA ,r 35,343 at
173,463; Thai Hai, ASBCA No. 53375, 02-2 BCA ,r 31,971 at 157,920, aff'd, Thai Hai v.
Brownlee, 82 F. App'x 226 (Fed. Cir. 2003) (unpublished).
FED. R. CIV. P. 60(a) pertains to corrections to a judgment based upon clerical
mistakes, oversights and omissions, which did not occur here. Rule 60(b) allows for relief
from a final judgment based upon: ( 1) "mistake, inadvertence, surprise or excusable
neglect"; (2) "newly discovered evidence"; (3) "fraud ... , misrepresentation, or misconduct by
an opposing party"; (4) a void judgment; (5) a judgment that "has been satisfied, released or
discharged"; and (6) "any other reason that justifies relief." KBR relies in particular upon
Rule 60(b)( 5), citing it for the proposition that "one of the primary purposes of a motion to
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amend [is] to allow an adjudicative body to account for the satisfaction of a judgment after
the decision has been made and, thu·s, the record closed" (app. reply at 3 n.2).
As quoted above, Board Rule 19(a) provides that the Board's decisions are to be
made upon the record alone. DCMA is correct that the amendment KBR seeks is not based
upon any matter of record. Moreover, there is no probative, undisputed evidence that the
Board's judgment has been satisfied. The Board finds nothing in FED. R. CIV. P. 60 to
support KBR's motion. Thus, there is no basis for the Board to amend its decision.
DECISION
The Board denies KBR's motion.
Dated: August 28, 2018
ministrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
RICHARD SHACKLEFORD OWEN C. WILSON
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
I certify that the foregoing is a true copy of the Opinion and Decision of the Armed
Services Board of Contract Appeals in ASBCA No. 58175, Appeal of Kellogg Brown & Root
Services, Inc., rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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