Kellogg Brown & Root Services, Inc. ( 2014 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Kellogg Brown & Root Services, Inc. ) ASBCA No. 58492)
Under Contract No. DAAA09-02-D-0007 )
APPEARANCES FOR THE APPELLANT: Scott M. Heimberg, Esq.
Thomas P. McLish, Esq.
Akin Gump Strauss Hauer & Feld LLP
Washington, DC
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attorney
Brian E. Bentley, Esq.
CPT Anthony F. Schiavetti, JA
Trial Attorneys
OPINION BY ADMINISTRATIVE JUDGE YOUNGER
ON THE GOVERNMENT'S MOTION TO DISMISS FOR LACK OF
SUBJECT MATTER JURISDICTION
This sponsored appeal arises from a contract with the Army (Army or government)
to provide dining facility services for troops in Iraq. The government has moved to
dismiss for lack of subject matter jurisdiction, contending that the prime contractor,
Kellogg Brown & Root Services, Inc. (KBR), failed to submit the certified claim to the
contracting officer within the applicable six-year statute of limitations. In opposition,
KBR principally argues that the government's motion is predicated upon the wrong accrual
date because it ignores a lengthy dispute between KBR and its subcontractor that
prevented submission of a request for payment at an earlier date. In any event, KBR urges
that the present claim should relate back to an earlier claim, submitted over three years
previously, that was based upon the same operative facts and was withdrawn. In addition,
KBR argues, the statute of limitations should be equitably tolled because any delay is
attributable to the time taken in "thoroughly vetting" its subcontractor's claim. We grant
the government's motion and dismiss the appeal.
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION
1. By date of 14 December 2001, the Army's Rock Island Contracting Center
awarded Contract No. DAAA09-02-D-0007 (the contract) to KBR to facilitate the
operations of the Logistics Civil Augmentation Program (LOGCAP) by using civilian
contractors to provide the Army with mission-essential support services in wartime and
other operations (R4, tab 1 at KFLD-000002). The contract was awarded as a cost-type
services contract (id.).
2. It is undisputed that, in March 2003, the United States began military
operations in Iraq.
3. By date of 13 June 2003, the government issued Task Order 59 to KBR under
LOGCAP III. By Task Order 59, KBR was required to perform logistical and life
support tasks in compliance with the "V Corps LOGCAP Support Change 02, Statement
of Work" in support of Operation Iraqi Freedom (R4, tab 6 at KFLD-000165-66). Task
Order 59 was a cost-plus-award-fee task order (id. at KFLD-000166).
4. Thereafter, effective 15 June 2003, KBR entered into Master Agreement
No. LOGCAP-KU-MA00006 (the Master Agreement) with The Kuwait Company for
Process Plant Construction & Contracting k.s.c./Morris Corporation (AUST) PTY LTD
(KCPC/Morris), under which KCPC/Morris was to "[p]rovide all bonds, labor, material,
equipment, transportation, insurance, supervision, permits, supplies, documentation,
inspection, and all other things necessary to provide [full dining facilities] at
locations ... throughout Kuwait and Iraq." The Master Agreement provided that the site
locations for the dining facilities would be specified in Work Releases. The Master
Agreement in the record contains Work Release# 1, dated 29 June 2003, for an Army
camp north ofTikrit, and Work Release# 2, also dated 29 June 2003, for an Army camp
south ofTikrit. (R4, tab 8 at KFLD-000175, KFLD-000177, KFLD-000196-97)
5. By show cause notice to KCPC/Morris dated 24 July 2003, KBR advised that it
was "considering terminating the contract" for default. KBR stated that, "[t]o avoid any
further termination proceedings, please ensure full contract performance no later than
July 28, 2003." (R4, tab 12)
6. By date of 31 July 2003, KBR issued a notice of termination for default to
KCPC/Morris for both Work Release # 1 and Work Release # 2. The cited reason for the
termination was that, while the show cause notice had required full performance no later
than 28 July 2003, KCPC/Morris had "failed to bring conditions to full contract
performance as of 31July2003." (R4, tab 13) KBR's manager advised KCPC/Morris
that "[e]ffective immediately, your company shall halt all operations and minimize
impact of all further costs" (id.) (italics and boldface in original).
7. By date of 2 August 2003, KCPC/Morris responded to KBR's notice of
termination. KCPC/Morris disputed the factual basis for KBR's action in multiple
particulars, characterizing the terminations regarding sites C-1 and C-2 as "unfair,
arbitrary and unjustified." (R4, tab 16 at KFLD-000257, KFLD-000259) KCPC/Morris
"request[ed] immediate reinstatement of our full contracts at both sites C-1 and C-2 and
compensation of lost construction costs, plus a reasonable extension for the completion of
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our works" (id. at KFLD-000259). KCPC/Morris requested a "reply within 24 hours
failing which we shall have no option but to seek legal advice, including but not limited
to, taking an injunction" (id.).
8. Thereafter, KBR directed KCPC/Morris to continue to provide temporary
dining facility arrangements during a transition period to a new subcontractor, which
period continued until 12 September 2003 (R4, tabs 15, 19 at KFLD-000266).
9. By letter to KBR dated 13 September 2003, KCPC/Morris submitted a detailed,
two-volume termination settlement proposal "for Site C 1, Tikrit North ... and Site C 2,
Tikrit South" (R4, tab 19 at KFLD-000265). KCPC/Morris explained that, as a result of
"correspondence and meetings between KBR and the KCPC/Morris Joint Venture, it was
determined and agreed that a reasonable settlement acceptable to KCPC/Morris Joint
Venture would be to the best interests of all concerned" (id. at KFLD-000266).
10. In October 2003, KBR responded to KCPC/Morris with its own settlement
proposal, and the parties thereafter undertook to resolve their differences (Appellant's
Opposition to the Government's Motion to Dismiss for Lack of Subject Matter
Jurisdiction (app. opp'n), ex. 1 at KBR-009722-23). The parties seemingly resolved their
differences. By date of 19 May 2004, the parties entered into a settlement agreement,
apparently verbal, whereby KBR agreed to pay KCPC/Morris $20,440,000 within
60 days, or by 18 July 2004 (id. at KBR-009723-24). Nonetheless, in October 2004,
KCPC/Morris brought suit against KBR in the United States District Court for the
Eastern District of Virginia, alleging breach of the 19 May 2004 settlement agreement
(id. at KBR-009719-20).
11. By date of 24 January 2005, KBR and KCPC/Morris executed a settlement
agreement resolving the litigation between them. In pertinent part, the parties divided
KCPC/Morris' costs into two groups: (a) the "Settlement Amount" of $17,400,000; and
(b) KCPC/Morris' "costs incurred and profit related to its performance under the Master
Agreement and the termination of the Work Releases ... including overhead, G&A, profit
and certain costs incurred in preparing requests for payment to the U.S. Government"
(app. opp'n, ex. 3 at 3/10). KBR agreed to pay KCPC/Morris the settlement amount, plus
any of the other costs that KBR ultimately received from the government, in return for
the dismissal of the district court action (id.). KBR also agreed to cooperate with
KCPC/Morris "to prepare a well-supported invoice or invoices to the U.S. Government"
to recover the other costs above the settlement amount, and to submit the invoice to the
government (id.).
12. By notice to KCPC/Morris dated 24 January 2005, KBR also amended its
31 July 2003 termination for default notice, and converted the termination to one for
convenience, effective as of 31 July 2003. KBR stated that it had "found sufficient
supporting information to substantiate a Termination for Convenience." (R4, tab 20)
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13. Nineteen months later, by letter dated 24 August 2006, KCPC/Morris
submitted to KBR a certified claim "for outstanding payments, costs and lost profit
associated with the termination for convenience" of the subcontract with KCPC/Morris
(R4, tab 21 at KFLD-000272).
14. By letter to the contracting officer dated 3 November 2006, KBR forwarded
KCPC/Morris' 24 August 2006 request for payment to the government (R4, tab 21
at KFLD-000271 ). KBR advised the contracting officer that it "does not certify or
comment [on] the validity of these costs and does not have any other supporting
documentation for validation" (id.).
15. In response, the Army advised KBR by letter dated 30 May 2007 that "it is
KBR's management responsibility to negotiate or discuss claims with Subcontractors.
The Government does not comment, in advance, as to whether a claim or certain costs are
appropriate. Thus, the Government will not meet with, or correspond directly with KBR
Subcontractors." (R4, tab 22)
16. By letter to the Army dated 10 October 2007, KBR submitted "the sponsored
claim of [its] subcontractor [KCPC/Morris]." Referring to its 3 November 2006 submission
ofKCPC/Morris' claim, and the government's response (see statements 14, 15), KBR
"disagree[d] and respectfully request[ed] that [the Army] consider the KCPC/Morris claim
as [KBR] is submitting it as a sponsor to its subcontractor." (R4, tab 23 at KFLD-000276)
17. By date of 10 January 2008, KBR submitted to the contracting officer, on
behalf ofKCPC/Morris, a certified claim in the amount of$29,756,530.73 (the 2008
claim) (R4, tab 24).
18. Thereafter, by date of 8 September 20 I 0, KBR withdrew the 2008 claim.
KBR advised the Army that "[t]his claim was submitted on behalf of our subcontractor,
[KCPC/Morris]. Upon further review of the data provided by KCPC/Morris, KBR has
determined that this constitutes a business dispute between KBR and KCPC/Morris and
should be resolved in accordance with KBR's subcontract with KCPC/Morris." (R4,
tab 28) It is undisputed that the contracting officer had not rendered a decision on the
2008 claim at the time that KBR withdrew it.
19. By date of 2 May 2012, KBR submitted to the contracting officer, on behalf
ofKCPC/Morris, a certified claim in the amount of $10,464,493 (the 2012 claim) (R4,
tab 31 at KFLD-000315). KBR represented that this claim amount constituted the total
settlement value of $28,345,137, less the portions of that amount already disbursed to
KCPC/Morris as a result of the 2005 settlement, as well as amounts for which KBR had
billed the government (see statement 11) (id.). KBR broke the resulting $10,464,493
down into the following components: (a) construction costs, consisting of those for sites
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C-1 and C-2 (see statement 9), equipment for the barbeque served on 4 July 2003, and
miscellaneous costs for expenses such as medical care and travel; (b) meals served,
including the 4 July 2003 barbeque; (c) overhead and G&A; ( d) profit; and
(e) termination settlement proposal resolution costs (R4, tab 31 at KFLD-000328). It is
undisputed that the contracting officer did not render a decision on the 2012 claim.
20. On 7 January 2013, KBR filed its notice of appeal from the deemed denial of
the 2 May 2012 certified claim.
21. In its subsequent complaint, KBR invoked our "deemed denied" jurisdiction
from the contracting officer's failure to render a decision on the 2012 certified claim
(comp I. iii! 5-10, 27). On the merits, KBR alleged that it:
[D]etermined that KCPC/Morris is entitled to a total of
$28,345,137 as a result ofa termination for convenience of
the work releases in 2003. The two primary components of
the claim are ( 1) the cost incurred relating to the construction
of the dining facilities ... up to the point of termination for
Sites C-1 and C-2 and (2) compensation for the meals served
after the termination at Site C-1 (Tikrit North), the July 4th
(2003) Barbeque and [KBR's] direction to serve hot lunches.
(Compl. if 25)
22. The present record reflects significant time gaps between several events
regarding this appeal. Thus, the record reflects: (a) a 52-month gap between the end of
performance on 12 September 2003 (see statement 8) and KBR's submission of the 2008
claim by date of 10 January 2008 (see statement 17); (b) a 32-month gap between KBR's
submission and withdrawal of the 2008 claim (see statements 17-18); and (c) a 19-month
delay between KBR's 24 January 2005 conversion ofKCPC/Morris' default termination
to one for convenience and KCPC/Morris' submission of its claim to KBR (see
statements 12-13).
DECISION
In moving to dismiss this appeal, the government points to the Contract Disputes
Act statute oflimitations, 41 U.S.C. § 7103(a)(4)(A). It provides that "[e]ach claim by a
contractor against the Federal Government relating to a contract ... shall be submitted
within 6 years after the accrual of the claim." The statute does not define the term
"Accrual of the claim," but FAR 33.201 does. It provides that a claim accrues on "the
date when all events, that fix the alleged liability of either the Government or the
contractor and permit assertion of the claim, were known or should have been known.
5
For liability to be fixed, some injury must have occurred. However, monetary damages
need not have been incurred."
The government's first argument focuses upon KBR's 2 May 2012 certified claim
on behalf of KCPC/Morris (see statement 19). Alluding to the "known or should have
been known" formulation in FAR 33.201, the Army stresses that KBR cannot base its
appeal on the 2012 claim because "KBR was sufficiently aware of the facts fixing
liability so as to permit assertion of a claim well before 2 May 2006," which date would
be six years before KBR's 2 May 2012 claim. (Government's Motion to Dismiss for
Lack of Subject Matter Jurisdiction (gov't mot.) at 6) The government asserts that, "[n]o
later than 2 August 2003," the date that KCPC/Morris responded to KBR's notice of
termination for default (see statement 7), "the events that fixed KBR' s liability to
KCPC/Morris (the termination) were known by KBR" (gov't mot. at 6). Alternatively,
the Army tells us that, if KBR was not "sufficiently on notice of its liability to
KCPC/Morris by 2 August 2003," it surely was on notice in January 2005, when it settled
its termination dispute with KCPC/Morris (see statement 12) (gov't mot. at 7).
The Army's second point is that this appeal is not based upon KBR's 10 January
2008 claim because KBR withdrew that claim (see statements 17-18). The Army asserts
that KBR' s complaint "clearly indicates that the present appeal is taken from the deemed
denial" of the 2012 claim (see statement 19), and, in any event, KBR's withdrawal of the
2008 claim rendered it a nullity (gov't mot. at 7-9).
In opposing the motion, KBR focuses upon the cost-type nature of Task Order 59
(see statement 3). Given this context, KBR argues, "all events, that fix the alleged
liability of... the Govemment ... and permit assertion of the claim," FAR 33.201, could
only occur upon or after the government's failure or refusal to pay KBR's request for
reimbursement of incurred costs. KBR insists that "it is the Government's refusal to
reimburse the contractor for ... cost[s] when requested, as required by the contract[,] that
causes an injury" (app. opp'n at 15). Here, KBR says, "[t]he first time [KBR] requested
payment from the Government of any of the costs at issue in this appeal was in
November 2006" (see statement 14) (app. opp'n at 14). Therefore, KBR reasons, the
claim accrued after November 2006 and the May 2012 claim was timely (id.).
In addition, KBR also advances two alternative arguments. The first is that the
2 May 2012 claim submission relates back to the 10 January 2008 claim. The second is
that the six-year limitations period in 41 U.S.C. § 7103(a)(4)(A) should be equitably tolled
because KBR diligently pursued its legal rights, the government was on notice ofKBR's
claim, and led KBR to believe that its claim had not accrued. (App. opp'n at 23-29)
We conclude that the government's motion to dismiss must be granted. We reach
this conclusion for five principal reasons.
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First, the Federal Circuit has held that the time limits set forth in the Contract
Disputes Act "are unequivocally jurisdictional." Bath Iron Works Corp. v. United States,
20 F.3d 1567, 1572 (Fed. Cir. 1994); see also Sys. Dev. Corp. v. McHugh, 658 F.3d 1341,
1345 (Fed. Cir. 2011) ("Contractor compliance with [the] statutory time limit on the
presentment of a claim to a [contracting officer] is a jurisdictional prerequisite for any
subsequent appeal"). KBR, as the party seeking to invoke our jurisdiction, bears the
burden of proving jurisdiction. McNutt v. General Motors Acceptance Corp., 298 U.S.
178, 189 (1936); see also Nat'! Presto Indust., Inc. v. Dazey Corp., 107 F.3d 1576, 1580
(Fed. Cir. 1997) ("Presto, the party seeking jurisdiction, bears the burden of showing
jurisdiction."); Eaton Contract Services, Inc., ASBCA No. 52888 et al., 02-2 BCA
~ 32,023 at 158,266 ("The burden of proving jurisdiction is on appellant as the party
seeking the exercise of jurisdiction in its favor."); Aries Marine Corp., ASBCA
No. 37826, 90-1 BCA ~ 22,484 at 112,847 (same). Here, "[i]n deciding the motion we
have presumed undisputed facts to be true." Raytheon Missile Systems, ASBCA
No. 58011, 13 BCA ~ 35,241 at 173,016.
Second, KBR must establish that its claim did not accrue before 2 May 2006. The
appeal is based upon KBR's 2012 claim, which was submitted by date of2 May 2012
(see statement 19). Hence, if the claim accrued before 2 May 2006, then the appeal must
be dismissed.
As indicated, claim accrual "means the date when all events[] that fix the alleged
liability ... were known or should have been known." FAR 33.201. "To determine when
liability is fixed, we start by examining the legal basis of the particular claim." Gray
Personnel, Inc., ASBCA No. 54652, 06-2 BCA ~ 33,378 at 165,475. The legal basis of
the 2012 claim, which is the foundation of this appeal, is alleged entitlement to the net
costs of performance of the terminated KCPC/Morris subcontract, including costs for
construction of sites C-1 and C-2, meals served, overhead, G&A and profit
(statement 19). In its complaint, KBR alleges entitlement as follows:
The two primary components of the claim[, which] are ( 1) the
cost incurred relating to the construction of the dining
facilities ... up to the point of termination for Sites C-1 and
C-2 and (2) compensation for the meals served after the
termination at Site C-1 (Tikrit North), the July 4th (2003)
Barbeque and [KBR] direction to serve hot lunches.
(Compl. ~ 25)
Given the legal basis of the claim, we conclude that the claim accrued on
12 September 2003, the date that performance by KCPC/Morris ended (see statement 8).
On that date, KBR knew that the "events[] that fix the alleged liability of. .. the
Government," FAR 33.201, had transpired. KBR had terminated KCPC/Morris on
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31 July 2003 (statement 6). The extended post-termination performance by
KCPC/Morris, during the transition to a new subcontractor, had concluded (statement 8).
As the initiator of the termination of KCPC/Morris, KBR undeniably had actual
knowledge on 12 September 2003 of the events "that fix the alleged liability" of the
government. KBR then knew that the subcontract with KCPC/Morris had been
performed and no work remained. KBR had actual knowledge that KCPC/Morris
disputed the factual basis for the termination, which KCPC/Morris characterized as
"unfair, arbitrary and unjustified" (statement 7). KBR also knew that KCPC/Morris had
incurred, and was incurring, costs, having directed its subcontractor to "minimize impact
of all further costs" (statement 6). KBR also knew that, on 2 August 2003, KCPC/Morris
had also demanded "compensation of lost construction costs," as well as other relief
(statement 7). In addition, "some injury ... occurred" from the termination, inasmuch as
the termination interfered with the right ofKCPC/Morris, as the party on whose behalf
the claim is asserted, to perform its subcontract (see statements 6-7).
Even if we were to conclude that the claim did not accrue on 12 September 2003,
other evidence in the record would point to accrual well before 2 May 2006, which is six
years before submission of the 2012 claim. The record would permit the conclusion that
the claim also could be deemed to accrue in 2004 or 2005. Thus, KBR had sufficient
actual knowledge of the facts fixing the government's alleged liability to enter into an
apparently verbal settlement agreement regarding liability relating to the subcontract in
May 2004 and to defend a lawsuit regarding that agreement in October 2004
(statement 10). In addition, in January 2005, KBR had sufficient actual knowledge to
enter into a written settlement agreement segregating subcontract costs into a "Settlement
Amount" and other costs above that amount (statement 11). KBR also had sufficient
knowledge in January 2005 to convert the default termination ofKCPC/Morris to a
convenience termination (statement 12).
In concluding that the claim accrued on 12 September 2003, we necessarily reject
KBR' s argument that it only accrued on or after the government's failure or refusal to
pay KBR's request for reimbursement of incurred costs (app. opp'n at 15) which was
submitted first to the contracting officer on 3 November 2006 (see statement 14 ). We
reject this approach chiefly because it makes accrual dependent upon KBR's diligence in
organizing and submitting its claim. As such, it runs headlong into our holding in
Raytheon Missile Systems, 13 BCA if 35,241 at 173,018, where we held that "[a]ccrual of
a contracting party's claim is not suspended until it performs an audit or other financial
analysis to determine the amount of its damages." We relied upon the principle
articulated in United States v. Commodities Export Co., 972 F.2d 1266, 1271 (Fed. Cir.
1992) that "a single party [cannot] postpone unilaterally and indefinitely the running of
the statute of limitations." We also cannot harmonize KBR's treatment of the
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3 November 2006 submission as dispositive with our holding in Raytheon Co., Space &
Airborne Systems, ASBCA No. 57801 et al., 13 BCA ii 35,319 at 173,377, that:
Claim accrual does not depend on the degree of detail
provided, whether the contractor revises the calculations later,
or whether the contractor characterizes the impact as
"immaterial." It is enough that the government [or
contractor] knows, or has reason to know, that some costs
have been incurred, even if the amount is not finalized or a
fuller analysis will follow.
Third, claim accrual was not delayed until November 2006 because of a routine
request for payment. As indicated, KBR argues that its claim arose from a routine
request for payment, which was not disputed until it had "entered into negotiations,
litigation, and a settlement agreement with KCPC/Morris, which resulted in the
November 2006 submission" (app. opp'n at 22-23).
KBR's claim arose from a non-routine request for payment. FAR 2.101 posits a
distinction between routine and non-routine requests for payment. With claims such as
KBR's, 'jurisdiction ... rises and falls based on how its request is classified." Parsons
Global Servs., Inc. ex rel. Odell Int'l, Inc. v. McHugh, 677 F.3d 1166, 1171 (Fed. Cir.
2012).
"A voucher, invoice, or other routine request for payment that is not in dispute when
submitted is not a claim." FAR 2.101. A routine request "is one incurred and submitted 'in
accordance with the expected or scheduled progression of contract performance."' Parsons,
677 F.3d at 1170 (citing James M Ellett Constr. Co. v. United States, 93 F.3d 1537, 1542-43
(Fed. Cir. 1996)). By contrast, a non-routine request for payment is rooted in events
outside the "expected or scheduled progression." A non-routine request is one "seeking
compensation because of unforeseen or unintended circumstances." Ellett, 93 F.3d at 1543.
For prime contractor claims, "[a] common thread [of non-routine requests] is the presence of
some unexpected or unforeseen action on the government's part that ties it to the demanded
costs." Parsons, 677 F.3d at 1171. "The distinction between a routine and non-routine
request ... is a factual one, dependent on the circumstances in which the requested costs
arose." Id. at 1170. In Parsons, the court discussed cases in which requests had been held to
be non-routine. They included: claims for "issuance of a stop work order," citing Rejlectone,
Inc. v. Dalton, 60 F.3d 1572, 1577 (Fed. Cir. 1995); claims for "damages resulting from the
government's termination for convenience," citing Ellett, 93 F.3d at 1542-43; and claims for
"damages stemming from the government's breach of contract," citing Ky. Bridge & Dam,
Inc. v. United States, 42 Fed. Cl. 501, 518-19 (1998). Parsons, 677 F.3d at 1171; see also
Parsons Global Services, Inc., ASBCA No. 56731, 11-1 BCA ii 34,632 at 170,654, ajf'd,
677 F.3d 1166 (Fed. Cir. 2012) (recognizing that "a termination for convenience normally is
not a routine occurrence").
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KBR's 2012 claim arose from a non-routine request for payment. The claim arose
from the termination of the KCPC/Morris subcontract (see statement 6). As such, the
claim arose from "unforeseen or unintended circumstances," Ellett, 93 F .3d at 1543,
which were non-routine.
Fourth, KBR's 2012 claim does not relate back to its 2008 claim. KBR argues
that its 2012 claim "arose from the same set of operative facts as the 2008 claim and gave
the Government notice of the outstanding claim," hence making the 2012 claim timely
(app. opp'n at 24). In support of this argument, KBR tells us that the present situation is
analogous to the relation back of pleadings (id. at 23). See Vann v. United States,
420 F.2d 968, 974 (Ct. Cl. 1970) (holding an amended petition related back to original
petition, which "gave good notice" of the substance of the matters the contractor
complained of). For its part, the government urges that "KBR's action in withdrawing its
claim in September 2010 [see statement 18] is the functional equivalent of a voluntary
dismissal under Fed. R. Civ. P. 41," rendering the 2008 claim a nullity (Government's
Reply to Appellant's Response to Motion to Dismiss for Lack of Subject Matter
Jurisdiction (gov't reply) at 9-10).
We accept the government's argument. We cannot harmonize KBR's position
with the Federal Circuit's decision in Bonneville Assocs. Ltd. P'ship v. Barram, 165 F.3d
1360 (Fed. Cir. 1999). There, the Federal Circuit held that an appeal to the board was
time-barred because it did not relate back to an earlier, timely appeal that the contractor
had voluntarily dismissed. In deciding the issue, the court looked to the rule in the
federal courts that ''the effect of a voluntary dismissal without prejudice pursuant to
Rule 4l(a) 'is to render the proceedings a nullity and leave the parties as if the action had
never been brought."' Bonneville, 165 F.3d at 1364 (quoting Williams v. Clarke, 82 F.3d
270, 273 (8th Cir. 1996)).
The same principle applies to KBR's withdrawal of its 2008 claim. KBR
withdrew the claim voluntarily (see statement 18). KBR did not indicate that it would
file the claim anew, and indeed stated that the matter presented "a business dispute
between KBR and KCPC/Morris" (id.). At the time of withdrawal, the contracting
officer had not made any decision on the claim (id.).
Fifth, there is no basis for equitable tolling. KBR urges that, "even if the claim
accrued in 2003 or 2005, the statute of limitations should be equitably tolled" because it
diligently pursued its rights. KBR further asserts that the government was on notice of
KBR's claim in 2005, when KBR says it furnished the government with a copy of the
complaint in the first KCPC/Morris lawsuit (see statements 11-12), as well as in the 2006
payment request (see statement 14) and the 2008 claim (see statement 17). (App. opp'n
at 27-29) In addition, focusing upon the government's 30 May 2007 response to KBR's
2006 submission (see statement 15), KBR tells us that the government led it to believe
10
that its claim had not accrued (app. opp'n at 29-30). For its part, the government argues
that "the factual timeline offered by KBR in its [brief] demonstrates lengthy periods of
inactivity" and that KBR has "failed to show that extraordinary circumstances beyond its
control prevented KBR from timely presenting KCPC/Morris' claim under the CDA"
(gov't reply at 10-11 ).
It is true that the six-year limitation period in 41 U.S.C. § 7103(a)(4)(A) is subject
to equitable tolling. The Boeing Co., ASBCA No. 57490, 12-1 BCA ~ 34,916
at 171,677-80 (considering more recent decisions and concluding that Arctic Slope Native
Ass 'n v. Sebelius, 583 F.3d 785, 798-800 (Fed. Cir. 2009), cert. denied, 130 S. Ct. 3503(2010) remains good law). Nonetheless, equitable tolling is "allowed .. .in situations
where the claimant has actively pursued his judicial remedies by filing a defective
pleading during the statutory period, or where the complainant has been induced or
tricked by his adversary's misconduct into allowing the filing deadline to pass." Irwin v.
Department of Veterans Affairs, 498 U.S. 89, 96 (1990). With a record that reflects such
lengthy time gaps as this (see statement 22), we cannot say that KBR has "actively
pursued [its] ... remedies." In addition, we have quoted the government's 30 May 2007
response to KBR's submission ofKCPC/Morris' claim, and the response will not support
any conclusion of trickery or other misconduct (see statement 15).
CONCLUSION
The government's motion to dismiss for lack of subject matter jurisdiction is
granted. The appeal is dismissed.
Dated: 18 August 2014
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
``~
Administrative Judge
RICHARD SHACKLEFORD
Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
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I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 58492, Appeal of Kellogg
Brown and 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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