Kellogg Brown & Root Services, Inc.

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of - )
)
Kellogg Brown & Root Services, Inc. ) ASBCA Nos. 62681, 62843, 62844
)
Under Contract No. W912GB-13-C-0011 )
APPEARANCES FOR THE APPELLANT: Daniel J. Kraftson, Esq.
Sean M. Howley, Esq.
Jonathan J. Straw, Esq.
Kraftson Caudle PLC
McLean, VA
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.
Engineer Chief Trial Attorney
Paul L. Huhtanen, Esq.
Herbert J. Aldridge, Esq.
Paul Cheverie, Esq.
LuzDanielle O. Bolong, Esq.
Engineer Trial Attorneys
U.S. Army Engineer District, Europe
OPINION BY ADMINISTRATIVE JUDGE HERZFELD
ON THE GOVERNMENT’S MOTION TO DISMISS
Respondent, the United States Army Corps of Engineers asserts that appellant,
Kellogg Brown & Root Services, Inc. (KBR), did not timely appeal the agency’s final
decisions assessing liquidated damages and recoupment of provisional payments. The
Army Corps of Engineers asserts that the government claims were embedded in the
contracting officer’s final decision denying KBR’s certified claim and KBR’s timely
appeal of that final decision did not properly appeal the government claims within that
decision. We disagree. Indeed, KBR timely appealed every document that could be
construed as a contracting officer’s final decision on these government claims. For the
reasons discussed below, we deny the Army Corps of Engineers’ motion to dismiss and
conclude that the letters demanding payment from KBR constituted the government
claims and contracting officer’s final decisions.
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION
In 2009, President Obama mandated that the government have a European
missile defense system operational “in the 2015 timeframe” (R4, tab 38). On July 9,
2013, the Army Corps of Engineers and KBR executed Contract No. W912GB-13-C-
0011 (Contract) for a firm, fixed-price amount of $134,211,592 to construct an Aegis
Ashore Missile Defense System site on Deveselu Air Base in Deveselu, Romania (R4,
tab 3 at 1-2). The Contract and modifications included milestone dates for KBR’s
completion of certain tasks by specific dates starting with the first milestone in
November 2013 and with project completion to occur in September 2015 (R4, tab 1
at 2-3, tab 65 at 2 (Modification No. A00003)). The Contract also stated that the Army
Corps of Engineers would assess liquidated damages if contractor-caused delay resulted
in KBR missing the September 2015 completion deadline and three interim milestones
(R4, tab 3 at 7; see also tab 3 at 54 (Contract includes Federal Acquisition Regulation
(FAR) 52.211-12, LIQUIDATED DAMAGES – CONSTRUCTION (SEP 2000))).
On December 3, 2014, the parties modified the contract to accelerate efforts to
complete the project and to increase funding for the contract (R4, tab 75 at 4-7 –
Modification No. P00007). The modification – P00007 – advised that new payments
based on this funding “[we]re not advance payments” and reminded KBR that “time is of
the essence and the Government is not waiving the right to assess liquidated damages”
(R4, tab 75 at 2-3). The Army Corps of Engineers stated that the modification was
“provisional and contingent upon KBR’s ability to demonstrate excusable delays” but
that “the Government will not collect any liquidated damages pending KBR’s
substantiation of delays” (R4, tab 75 at 3). After several additional contract
modifications, the Army Corps of Engineers added a total of $27 million to the contract
funding to assure timely completion of the project (R4, tab 97 at 2 (Modification
No. P00023)). KBR substantially completed the project on December 19, 2015 to meet
the presidential mandate (consolidated & amended compl. ¶ 73; gov’t answer to
appellant’s consolidated & amended compl. ¶ 73).
On May 31, 2016, KBR submitted a request for equitable adjustment to receive
compensation of $75,000,900 for impacts and delays to the project (R4, tab 118 at 2). On
August 4, 2017, the Army Corps of Engineers denied the request (R4, tab 137).
On March 15, 2019, KBR submitted a certified claim, which requested a 411-day
extension of the contract completion date to November 4, 2016 (and commensurate
extensions to the interim milestones) and payment of $50,206,830.98 based on the Army
Corps of Engineers’ delays and constructive and written changes (including accelerated
performance) (R4, tab 2 – KBR’s Certified Claim). KBR claimed it incurred $88.2 million
in costs due to the delay, but subtracted $37.9 million in accelerated provisional and other
payments made by the Army Corps of Engineers during performance, so sought only
$50.2 million in damages (R4, tab 140 at 13).
On July 1, 2020, the contracting officer issued a final decision denying KBR’s
entire certified claim, concluding that the delay damages were unrecoverable because
KBR had failed to demonstrate any excusable delays (R4, tab 1). The contracting officer
acknowledged that KBR’s claim reduced its $88.2 million in damages based on
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provisional and other payments that the Army Corps of Engineers had already made and,
thus, only sought $50.2 million in its certified claim (R4, tab 1 at 1 n.1). The decision
informed KBR of its right to appeal the decision to the Board or file an action at the
United States Court of Federal Claims (R4, tab 1 at 107-08).
In addition to denying KBR’s claim as failing to demonstrate any excusable
delays, the decision also discussed recoupment of the provisional payments and
liquidated damages (R4, tab 1). As to the provisional payments, the contracting officer
found that KBR had failed to demonstrate any delays were attributable to the government
and stated “the $27M in provisional payments made under the modification are subject to
recoupment or offset by the Government due to KBR’s failure [to] substantiate . . .
excusable delay” (R4, tab 1 at 48). In its conclusion and section denoted as the
“decision,” the contracting officer repeated the finding that KBR had “failed to justify
excusable delay as required under Modification No. P00007 and in accordance with the
terms of that bilateral modification the Government is entitled to recoup or offset the
provisional payments for acceleration by modification of the Contract or other measures
permitted by the FAR” (R4, tab 1 at 107).
As to liquidated damages, the decision referenced the liquidated damages provisions
of the Contract (including modifications), the number of days of delay, and the dollar
amount penalty for each day of unexcused delay (R4, tab 1 at 3, 17-18, 32-33). The
decision did not provide a dollar figure for the liquidated damages owed based on the
Contract and days of delay (see generally R4, tab 1). The contracting officer concluded,
“Concerning liquidated damages, the Contractor has not demonstrated entitlement to waiver
of liquidated damages under the terms of the Contract in the claim and the Government
reserves the right to collect those damages in a future decision” (R4, tab 1 at 107).
On September 24, 2020, KBR filed a combined notice of appeal and complaint
with the Board (ASBCA No. 62681). KBR attached a copy of the entire July 1, 2020
contracting officer’s final decision to its filing. KBR stated, “KBR is justly due the
amounts sought in its Claim and, as such, KBR hereby appeals the Contracting Officer’s
Final Decision.” (Notice of Appeal & compl. at 2) KBR repeated that its claim sought
$88,167,545.49, but had reduced it by $37,960,714.51 based on provisional and other
payments by the government. (Notice of Appeal & compl. ¶ 79) KBR’s complaint also
alleged that the contracting officer’s final decision “asserted, without analysis or support,
that KBR is responsible for the delays to the Project. These assertions of performance
failures by KBR and its subcontractors in the Decision were made without analytical
basis or support.” (Notice of Appeal & compl. ¶ 84)
On December 10, 2020, the contracting officer sent KBR two “demand letters”
regarding the provisional payments and liquidated damages (R4, tabs 154, 156). The letter
demanding repayment of the $27 million in provisional acceleration payments concluded:
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As stated in the [contracting officer’s final decision], I have
concluded that KBR did not demonstrate entitlement to
excusable delay to the activities accelerated by Modification
No. P00007 and hereby demand repayment of the amounts
paid to KBR for ‘provisional acceleration efforts’ under
Modification Nos. P00007, 12, 14, 19, and 23 under the terms
of the Contract and FAR subpart 32.6 - Contract Debts.
(R4, tab 154 at 2) The contracting officer also stated that KBR could request “that the debt
be paid in installments or that collection of the debt be deferred due to the impracticability
of payment or pending resolution of disputes concerning the amount owed” (R4, tab 154
at 3). However, the letter did not include any notice of Contract Disputes Act (CDA)
appeal rights.
The letter demanding KBR pay liquidated damages followed the same form (R4,
tab 156). The contracting officer quoted the July 1 decision, which had stated the Army
Corps of Engineers had “reserve[d] the right” to collect liquidated damages “in a future
decision” (R4, tab 156 at 1). “This letter gives notice of the Government’s assessment and
collection of liquidated damages under the terms of the Contract and issues a demand for
payment of liquidated damages not offset by the unpaid balance of the Contract” (R4,
tab 156 at 1). The demand letter asserted KBR owed $6,398,210 in liquidated damages
(R4, tab 156 at 2). The agency “will administratively offset these damages from the
unpaid amounts obligated on the Contract, $2,421,685” and demanded KBR pay the
remainder (R4, tab 156 at 2). Similar to the other demand letter, the contracting officer
advised KBR that it could request “the debt be deferred due to the impracticability of
payment or pending resolution of disputes concerning the amount owed” (R4, tab 156
at 3). However, this letter also did not include any notice of CDA appeal rights.
On January 20, 2021, KBR responded to each demand letter and requested that the
Army Corps of Engineers defer collection of the debt pending the resolution of KBR’s
on-going appeal at the Board (R4, tabs 155, 157).
On March 8, 2021, KBR filed two notices of appeal with the Board each stating
that “KBR understands the December 10, 2020 letter to be the Contracting Officer’s Final
Decision with regard” to the liquidated damages and the provisional acceleration
payments, respectively. KBR attached each demand letter to the respective notice of
appeal. On March 12, 2021, the Board docketed these appeals as ASBCA Nos. 62843
(recoupment of provisional payments) and 62844 (liquidated damages), consolidated
them with appeal No. 62681, and directed KBR to file a complaint (and permitted KBR
to file a consolidated complaint). On April 12, 2021, KBR filed a consolidated and
amended complaint.
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DECISION
The Army Corps of Engineers moves to dismiss KBR’s appeals challenging the
government claims as untimely because it asserts: (1) KBR’s timely notice of appeal of
the July 1, 2020 contracting officer’s final decision (ASBCA No. 62681) failed to state
KBR specifically intended to appeal the alleged government claims in that decision
(gov’t mot. at 8-9; gov’t reply at 8-10); and (2) KBR’s subsequent appeals (ASBCA
Nos. 62843 and 62844) challenging the agency’s demand letters are not valid contracting
officer’s final decisions and KBR’s appeals should be dismissed as untimely (gov’t mot.
at 4-8; gov’t reply at 4-8). For the reasons discussed below, KBR timely appealed the
government claims, which were memorialized in the demand letters issued by the
contracting officer (CO).
I. Standard of Review
Claims for the recoupment of provisional payments and for liquidated damages, as
here, constitute government claims. M. Maropakis Carpentry, Inc. v. United States, 609
F.3d 1323, 1330 (Fed. Cir. 2010) (liquidated damages); Alaska Aerospace Corp., ASBCA
No. 59794, 16-1 BCA ¶ 36,498 at 177,844 (recoupment). CDA jurisdiction over a
government monetary claim requires both a valid government claim and a contracting
officer’s final decision asserting or demanding payment of the claim. Maropakis, 609 F.3d
at 1327; L-3 Commc’ns Integrated Sys., LP, ASBCA Nos. 60713, 60716, 17-1 BCA ¶
36,865 at 179,625 (“Pursuant to the CDA, for a government claim, this Board’s jurisdiction
is dependent on a contracting officer asserting a claim in the form of a contracting officer’s
final decision issued to the contractor.”). “The government bears the burden of establishing
jurisdiction for a government claim.” L-3 Commc’ns, 17-1 BCA ¶ 36,865 at 179,625.
However, the contractor bears the burden for establishing that it timely appealed a
contracting officer’s final decision. R&R Sys. Sols., LLC, ASBCA Nos. 61269, 61405, 19-1
BCA ¶ 37,269 at 181,358. We rely on the record for fact-finding when evaluating facts
supporting jurisdiction. Najmaa Alshimal Co., ASBCA No. 62701, 21-1 BCA ¶ 37,872at 183,899 (citing CCIE & Co., ASBCA Nos. 58355, 59008, 14-1 BCA ¶ 35,700at 174,816).
II. By Timely Appealing the Contracting Officer’s Final Decision Denying the
Contractor’s Claim, the Contractor Timely Appealed Any Alleged Government
Claims Embedded in the Same Contracting Officer’s Final Decision
“A contractor, within 90 days from the date of receipt of a contracting officer’s
decision under section 7103 of this title, may appeal the decision to an agency board as
provided in section 7105 of this title.” 41 U.S.C. § 7104(a). The 90-day limitation is
jurisdictional and, thus, may not be waived. Cosmic Constr. Co. v. United States, 697
F.2d 1389, 1390 (Fed. Cir. 1982).
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The Army Corps of Engineers asserts that its July 1, 2020 contracting officer’s
final decision rendered a final decision on a valid government claim for liquidated
damages and recoupment of provisional payments, but KBR’s September 24, 2020
appeal of that decision (ASBCA No. 62681) somehow failed to appropriately challenge
the alleged government claims (gov’t mot. at 8-9; gov’t reply at 8-10). Indeed, the Army
Corps of Engineers does not contend that KBR’s notice of appeal was untimely. It could
not, given that KBR noticed its appeal on September 24, 2020 – within 90 days of the
July 1, 2020 decision. Instead, the Army Corps of Engineers looks to KBR’s combined
notice of appeal and complaint, asserting that the complaint fails to plead an appeal of the
government claims. We disagree with the agency’s contentions.
KBR timely appealed the July 1, 2020 contracting officer’s final decision. The
CDA speaks of appealing a “decision,” not whether the contractor intends to appeal
claims within a decision. 41 U.S.C. § 7104(a). Our rules state, “A notice of appeal shall
indicate that an appeal is being taken and should identify the contract by number, the
department and/or agency involved in the dispute, the decision from which the appeal is
taken, and the amount in dispute, if any.” ASBCA Rule 1(b). Similar to the simple
statutory requirement, the only thing a notice of appeal “shall” include is that the
contractor is appealing, everything else is something the contractor “should” do.
Here, KBR’s notice of appeal met the statutory minimum required – it appealed a
contracting officer’s final decision within 90 days, explicitly stating: “KBR is justly due
the amounts sought in its Claim and, as such, KBR hereby appeals the Contracting
Officer’s Final Decision” (Notice of Appeal & compl. at 2). Indeed, the notice of appeal
and complaint also included the information we encourage contractors to include,
identifying the contract number, the agency, the contracting officer’s final decision
appealed (which KBR attached), and the amount of money at issue – $88.2 million
(which includes the disputed provisional payments and implicitly the liquidated
damages). (Notice of Appeal & compl. at 1, ¶ 79)
The government points to KBR’s subsequent appeals of the December 10, 2020
demand letters as evidence that KBR did not believe its September 24, 2020 notice of
appeal was appealing the alleged government claims within the contracting officer’s final
decision (gov’t reply at 8-9). KBR can hardly be blamed for filing subsequent appeals
and not being more explicit in its initial appeal. The statements in the July 1, 2020
contracting officer’s final decision denying KBR’s claim were unclear whether the Army
Corps of Engineers was even asserting government claims in the decision. For example,
the final decision stated that the $27 million in provisional payments was “subject to
recoupment or offset” to be accomplished “by modification of the Contract or other
measures permitted by the FAR” and “reserve[d] the right” to collect liquidated damages
“in a future decision” (R4, tab 1 at 48, 107).
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Regardless of any confusion, we have repeatedly recognized that a contractor
timely appeals a contracting officer’s final decision that includes both contractor and
government claims even where the contractor’s notice of appeal fails to mention the
government claim embedded within the final decision appealed. G. Bliudzius
Contractors, Inc., ASBCA Nos. 42366, 42367, 93-1 BCA ¶ 25,439 at 126,685
(construing contractor’s “notices of appeal as indicating an intent on appellant’s part to
contest the Government’s assessment of liquidated damages” in the same contracting
officer’s final decision denying contractor’s request for a time extension, which
contractor specifically appealed); G.S.E. Dynamics, Inc., ASBCA No. 25227, 81-1 BCA
¶ 15,096 at 74,698-99 (“The Government appears to contend that the appeal from its final
decision of 11 April 1980 presented to the Board only appellant’s claim for work
performed on the Government furnished forgings. This is, however, clearly too narrow a
view of the matter.”). KBR was not explicit regarding appealing the alleged government
claims, but its timely appeal of the contracting officer’s final decision within the 90-day
jurisdictional appeal period sufficed to meet the timeliness requirements for appealing the
alleged government claims.
Ultimately, we conclude that KBR timely appealed the July 1, 2020 final decision.
However, the agency’s motion begs the question whether the July 1, 2020 contracting
officer’s final decision actually stated government claims (or whether the December 10,
2020 contracting officer’s demand letters stated the government claims). We address that
question next, because the parties disagree which communication constitutes a final
decision on the government claims.
III. The July 1, 2020 Contracting Officer’s Final Decision Did Not State Valid
Government Claims, But the Demand Letters Stated Valid Government
Claims and Constituted Final Decisions KBR Timely Appealed
The CDA does not define a claim, but the United States Court of Appeals for the
Federal Circuit has adopted the definition of a “claim” found in the FAR (and the
Disputes clause): “[A] written demand or written assertion by one of the contracting
parties seeking, as a matter of right, the payment of money in a sum certain, the
adjustment or interpretation of contract terms, or other relief arising under or relating to
the contract.” K-Con Bldg. Sys. v. United States, 778 F.3d 1000, 1005 (Fed. Cir. 2015)
(quoting Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed. Cir. 1995) (en banc)
(quoting FAR definition of “claim”)); FAR 2.101 (definition of “claim”); (R4, tab 3 at 33
(Contract incorporating FAR 52.233-1, DISPUTES (JUL 2002) that uses this definition));
CCIE & Co., 14-1 BCA ¶ 35,700 at 174,816.
A monetary claim must “adequately specify both the amount sought and the basis
for the request[.]” K-Con Bldg. Sys., Inc., 778 F.3d at 1005. A proponent of a claim
cannot simply state that it intends to assert a claim at a later time, but must make a
written demand or assertion for a monetary sum certain. Maropakis, 609 F.3d at 1328
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(“A claim cannot be based merely on intent to assert a claim without any communication
by the contractor of a desire for a contracting officer decision.”). Indeed, just like a
contractor, the government must make a “clear and unequivocal statement” giving
“adequate notice” of the basis and amount of the claim. L-3 Commc’ns, 17-1 BCA
¶ 36,865 at 179,625 (requiring government to provide “clear and unequivocal statement”
to meet “adequate notice” requirement); SRA Int’l, Inc. v. Dep’t of State, CBCA 6563,
20-1 BCA ¶ 37,543 at 182,312 (same); Raytheon Co. v. United States, 105 Fed. Cl. 236,
298 (2012) (requiring “adequate notice” of government claim), aff’d, 747 F.3d 1341 (Fed.
Cir. 2014). To determine the validity of a claim, we apply a common sense analysis,
looking at specific communications on a case-by-case basis and the “totality of previous
correspondence between the parties.” Holmes & Narver, Inc., ASBCA No. 51430, 99-1
BCA ¶ 30,131 at 149,054.
The July 1, 2020 decision did not state government claims for liquidated damages
or recoupment of the provisional payments. First, as noted above, the contracting officer
did not demand or assert a claim for money, but merely “reserve[d] the right” to collect
liquidated damages “in a future decision” and stated that KBR was “subject to
recoupment or offset” of provisional payments that the Army Corps of Engineers would
accomplish “by modification of the Contract or other measures permitted by the FAR”
(R4, tab 1 at 48, 107). These were mere assertions of legal rights that stated an intent to
seek a legal remedy in the future. However, “[t]he mere assertion of a legal right to a
remedy falls short of a written demand for payment of a sum certain.” Philips Lighting
N. Am. Corp., ASBCA No. 61769 et al., 20-1 BCA ¶ 37,679 at 182,929; ACEquip, Ltd.,
ASBCA No. 53479, 02-2 BCA ¶ 31,978 at 158,019 (“Although the Termination
Contracting Officer (TCO) mentioned that the Government was assessing liquidated
damages, just as the CO had previously communicated to appellant, the TCO did not seek
payment of liquidated damages. Thus, the TCO’s final decision was not a Government
claim for such damages within the meaning of the CDA.”), modified on other grounds,
03-1 BCA ¶ 32,109; cf also Hanley Indus., Inc., ASBCA No. 56976, 10-1 BCA ¶ 34,425at 169,930 (concluding there was no final decision because the contracting officer
“reserve[d] the right to submit the total dollar amount of its demand for these actions to
[contractor] at a later date”). Because the contracting officer’s decision was unclear and
equivocal in making a demand or assertion for payment, the July 1, 2020 decision did not
include a valid government claim.
Second, as to the claim for liquidated damages, the July 1, 2020 decision also
lacked a sum certain. Parsons Evergreene, LLC, ASBCA No. 57794, 12-2 BCA
¶ 35,092 at 172,346 (“There remains the necessity that the assessment of the liquidated
damages be memorialized in a final decision by the contracting officer.”). Notably, it was
unclear what exact dollar amount of the liquidated damages the Army Corps of Engineers
intended to seek and how it intended to recover – by recoupment, offset, or seeking
repayment. Only when the Army Corps of Engineers issued the demand letter for the
liquidated damages did the agency explain the sum certain amount owed (R4, tab 156).
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Moreover, this demand letter constituted the “future decision” promised in the July 1,
2020 contracting officer’s final decision denying KBR’s claims (R4, tab 1 at 107).
Given the totality of the correspondence between the parties, the contracting
officer’s December 10, 2020 demand letters constituted the government claims and the
contracting officer’s final decisions (R4, tabs 154,156). IBM Corp., ASBCA No. 60332,
18-1 BCA ¶ 37,002 at 180,192 (“We conclude that the government first asserted its claim
on 8 March 2013, when it issued a demand letter for the sum certain amount . . . .”). The
Army Corps of Engineers’ contracting officer’s demand letters were clear and unequivocal
that the agency sought recovery of a sum certain owed by KBR for the liquidated damages
and provisional payments; and, most importantly, KBR timely appealed those claims
(ASBCA Nos. 62843 and 62844).
The Army Corps of Engineers asserts that the demand letters did not serve as
contracting officer’s final decisions (gov’t mot. at 5-8; gov’t reply at 4-6). We disagree.
Even if not labeled a “final decision,” a communication from a contracting officer can
constitute a valid final decision. Placeway Constr. Corp. v. United States, 920 F.2d 903,
906-07 (Fed. Cir. 1990). Indeed, the FAR even permits a contracting officer to issue a
demand letter as part of a final decision. FAR 32.604(a)(3) (“Issue the demand for
payment as part of a final decision, if a final decision is required by 32.605(a).”).
The agency offers several authorities to assert otherwise. As the agency correctly
notes, we have concluded in some circumstances that demand letters did not constitute
final decisions (gov’t mot. at 5-6). For example, the agency cites Santa Fe Builders, Inc.,
where we found that the “demand letter cannot qualify because it expressly stated that a
contracting officer’s decision would be issued at a future date.” Santa Fe Builders, Inc.,
ASBCA No. 52021, 00-2 BCA ¶ 30,983 at 152,919. Here, however, the July 1, 2020
contracting officer’s final decision on KBR’s claims deferred a decision on the
government claims by stating the liquidated damages would be recovered in a “future
decision” and that the provisional payments were “subject to” recovery at a later date
(R4, tab 1 at 48, 107). The demand letters served as the future decisions on government
claims promised in the earlier correspondence.
The Army Corps of Engineers also cites Boeing v. United States, as providing
another example that a demand letter cannot serve as a final decision and distinguished
Placeway (gov’t reply at 4-5). Boeing v. United States, 25 Cl. Ct. 441, 446-47 (1992),
rev’d & vacated, 991 F.2d 811 (Fed. Cir. 1993) (unpub. tbl. dec.). In Boeing, the Claims
Court found that a demand letter was not a final decision. 25 Cl. Ct. at 446-47.
However, the Federal Circuit reversed and vacated that specific determination: “We hold
the demand was final.” 1993 WL 76280 at *1. *
*
The Federal Circuit changed its rules in 2020 and now permits parties to cite
non-precedential decisions (while previously it prohibited parties from citing
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The Army Corps of Engineers asserts that the later demand letters may not vitiate
the finality of an earlier final decision, relying on Aerospace Facilities Grp., Inc.,
ASBCA No. 61026, 18-1 BCA ¶ 37,105 at 180,605. In Aerospace Facilities, however,
we concluded that the government’s ambiguous actions vitiated a prior final decision.
Aerospace Facilities, 18-1 BCA ¶ 37,105 at 180,606. In any event, here the prior “final
decision” did not include a valid government claim and stated the agency intended to
issue future decisions regarding recoupment of provisional payments and for liquidated
damages. The Army Corps of Engineers’ actions here, like that in Aerospace Facilities,
sowed ambiguity into any finality of the July 1, 2020 decision.
The Army Corps of Engineers also asserts that we have found demand letters could
not constitute contracting officer’s final decisions because they lacked finality, prejudicing
a contractor by failing to include notice of the contractor’s appeal rights. Transportes
Especiales de Automoviles, S.A., ASBCA No. 43851, 93-2 BCA ¶ 25,745 at 128,113
(failing to inform contractor of appeal rights); Al’s Enters., Ltd., ASBCA No. 14031, 71-1
BCA ¶ 8,896 at 41,338 (pre-CDA appeal concluding “demand letters did not purport to be
final decisions of the contracting officer”). However, the CDA requires the contracting
officer to include the appeal rights for the “protection of the contractor.” Decker & Co. v.
West, 76 F.3d 1573, 1579 (Fed. Cir. 1996). And, as KBR correctly notes, there is no harm
where a contractor does not detrimentally rely on an agency’s failure to include the
required CDA appeal rights in a final decision. Fla. Dep’t of Ins. v. United States, 81 F.3d
1093, 1098 (Fed. Cir. 1996); JAAAT Tech. Servs., LLC, ASBCA No. 61792 et al., 21-1
BCA ¶ 37,878 at 183,950-51; (app. resp. at 8-9). Here, the agency’s failure to include the
appeal rights did not harm KBR because it timely appealed the final decisions.
Ultimately, based on our review of the totality of the communications between the
Army Corps of Engineers and KBR, we conclude that the facts of these appeals
demonstrate that the demand letters constitute final decisions. Accordingly, KBR timely
appealed those final decisions.
non-precedential dispositions issued prior to January 1, 2007). Compare Fed. Cir.
R. 32.1(c) (Dec. 2020) with Proposed Amendments to Federal Circuit Rules of
Practice (Apr. 2020), available at https://cafc.uscourts.gov/wp-
content/uploads/FCRProposedAmendments-PublicRedlineCopy-April2020.pdf.
The agency’s counsel was not alone in misdiagnosing the import of subsequent
adverse appellate history. KBR’s counsel also did not include subsequent
appellate history in Sharman Co. v. United States, 24 Cl. Ct. 763 (1991), which
KBR cited to support its assertion that a demand letter could be a final decision
(app. resp. at 9-10). The Federal Circuit reversed on that issue, concluding the
facts did not demonstrate that the demand letter was a final decision. Sharman Co.
v. United States, 2 F.3d 1564, 1571 (Fed. Cir. 1993), overruled on other grounds
by, Reflectone, Inc. v. Dalton, 60 F.3d 1572, 1579 n.10 (Fed. Cir. 1995) (en banc).
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CONCLUSION
The Army Corps of Engineers’ motion to dismiss is denied.
Dated: November 22, 2021
DANIEL S. HERZFELD
Administrative 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 Nos. 62681, 62843, 62844,
Appeals of Kellogg Brown & Root Services, Inc., rendered in conformance with the
Board’s Charter.
Dated: November 24, 2021
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
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