Kellogg Brown & Root Services, Inc.
Docket: ASBCA 57530, ASBCA 58161
Decision date: 2013-08-06

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of-- ) 
) 
Kellogg Brown & Root Services, Inc. ) 
) 
Under Contract No. DAAA09-02-D-0007 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA Nos. 57530,58161 
Douglas L. Patin, Esq. 
Bradley Arant Boult Cummings LLP 
Washington, DC 
Kerry M. McMahon, Esq. 
Porter Hedges LLP 
Houston, TX 
Craig Margolis, Esq. 
Amy Riella, Esq. 
Vinson & Elkins LLP 
Washington, DC 
E. Michael Chiaparas, Esq. 
DCMA Chief Trial Attorney 
Carol L. Matsunaga, Esq. 
Senior Trial Attorney 
Defense Contract Management Agency 
Carson, CA 
John A. Kolar, Esq. 
Russell Kinner, Esq. 
Trial Attorneys 
U.S. Department of Justice 
Washington, DC 
OPINION BY ADMINISTRATIVE JUDGE DELMAN ON APPELLANT'S 
MOTION FOR RECONSIDERATION OF BOARD'S 
ORDER OF DISMISSAL WITHOUT PREJUDICE 
Kellogg Brown & Root Services, Inc. (appellant or KBR) has filed a timely 
motion for reconsideration of our decision in Kellogg Brown & Root Services, Inc., 
ASBCA Nos. 57530, 58161, 13 BCA ~ 35,243, which dismissed these appeals without 

prejudice under Board Rule 30 pending resolution of a False Claims Act (FCA) suit. 1 
The government opposes reconsideration. Familiarity with our decision is presumed. 2 
Standard of Review 
It is well settled that a motion for reconsideration must be based upon newly 
discovered evidence or error in fact-finding or law. Bruce E. Zoeller, ASBCA 
No. 56578, 11-1 BCA ~ 34,720; Robinson Quality Constructors, ASBCA No. 55784, 
09-2 BCA ~ 34,171; Zulco International, Inc., ASBCA No. 55441,08-1 BCA ~ 33,799. 
A motion for reconsideration that restates arguments previously raised and considered by 
the Board will be denied. Bruce E. Zoeller, 11-1 BCA ~ 34,720 at 170,959. Based upon 
these legal 
principles, we address appellant's contentions below. 
Burden of Proof 
Appellant contends that the Board committed legal error by failing to apply the 
proper burden of proof and governing legal principles in analyzing the government's 
motion. We do not agree. 
The Board cited Kellogg Brown & Root Services, Inc., ASBCA Nos. 56358, 
57151, 11-1 BCA ~ 34,614 (KBR I) for the factors to consider when addressing a 
government motion to stay or dismiss without prejudice in the face of a FCA suit. 
Appellant does not suggest any different standard. In reaching our conclusion, while we 
did not expressly state that the government "met its burden of proof under KBR I," such 
language is not required. Rather, we concluded that we were persuaded by the 
circumstances presented, and this conclusion perforce was a conclusion that the 
government's burden was met. We reiterate here that the government has met its burden 
of proof on this record under KBR I, and we add the following to support this conclusion. 
While the KBR I factors guide us when assessing a government motion to suspend, 
stay or dismiss an appeal without prejudice in the face of a FCA suit, we do not read 
KBR I to compel the Board to weigh each of the cited factors equally. In the exercise of 
our discretion we may give the relevant factors such weight as the facts dictate and as the 
circumstances warrant. 
Here, we find particularly compelling that appellant's certified claim before us is 
the very same claim alleged to be a false or fraudulent in the FCA suit. The government 
alleges in the FCA action that the sum appellant seeks to recover, based upon its payment 
1 Judge Eunice W. Thomas, Vice Chairman, who participated in the Board's decision, 
has retired. 
2 Appellant has requested that its motion be referred to the Senior Deciding Group. The 
Chairman has 
reviewed the matter, and has denied appellant's request. 
2 

of the subcontractor REAs, was knowingly false or fraudulent. Although the legal issues 
before the Board and court are different, the transactional facts are virtually identical. As 
we stated, given the commonality of the facts and the differing legal standards, there 
would likely be confusion at the Board as what evidence may be tendered at the Board 
and for what purpose. 
In addition, the proponent of the REAs, First Kuwaiti, is a foreign subcontractor 
that is not a party before the Board, nor are its REAs before us as part of a 
contractor-sponsored claim. We obviously do not enjoy the same ability to require 
compliance with our orders for non-parties, particularly where the non-party is a foreign 
corporation, as we do with a party-claimant. Given the different postures of the two 
cases, this would work a hardship or inequity on the government's case before this Board, 
as compared to before the court. In the FCA action, First Kuwaiti is a party defendant, 
the legal issues are different and the court will have more tools available than the Board 
to enforce its orders against a party litigant. 
Appellant has demonstrated no legal error in this regard. 
Board Precedent 
Appellant contends that the Board's decision to grant the government's motion 
contradicts Board precedent. We do not agree. As we stated in our opinion, the facts of 
the cases cited by appellant are readily distinguishable. 
In KBR I, the Board denied a government motion for an indefinite stay of Board 
appeals in the face of an FCA suit. Under ASBCA No. 56358, the contractor sought 
recovery of subcontractor costs for private armed security. Under ASBCA No. 57151, 
KBR sought recovery for its own private armed security costs. 
The Board, after assessing the relevant facts, concluded that there was only 
"limited similarity" between the facts at the Board and the court case. The Board noted 
that 
under ASBCA No. 56358, the FCA suit factually had a "much wider scope" than the 
Board appeal, embracing more than 30 ofKBR's other subcontractors, and the record 
contained "no compelling reason" to "requir[ e] KBR to stand aside and wait in these 
appeals while the district court adjudicates the merits of the government's allegations 
regarding 'more than 30 ofKBR's other subcontractors."' KBR I, 11-1 BCA ~ 34,614 at 
170,603. Similarly, with respect to ASBCA No. 57151, the Board stated that the relevant 
factual allegations under this appeal only "comprise a minor portion of the allegations 
regarding KBR in the district court complaint" (id.). 
The factual differences between KBR I and our case are obvious. Compared to the 
limited similarity between the Board and FCA suits there, we have found that the 
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transactional facts at issue here between the Board and FCA actions are virtually 
identical. KBR I does not require us to reverse our decision. 
In TRW, Inc., ASBCA Nos. 51172, 51530, 99-2 BCA ~ 30,407 (TRW), the Board 
denied the government's motion to stay Board proceedings in which the contractor 
sought interpretation of contract terms and cost principles regarding the allocability and 
allowability of certain indirect costs in the face of parallel FCA litigation. The Board 
weighed the facts appropriate to the case, concluding, inter alia, that the fact issues in the 
Board and court proceedings were not identical; that the government failed to 
demonstrate any prejudice; and that appellant showed that a lack of prompt resolution 
would negatively impact its treatment of these costs on numerous other contracts in 
various cost accounting periods. On the other hand, we have concluded here that the 
transactional facts in the two forums are virtually identical; that the record supports 
prejudice to the government; and that appellant has not shown any harm (see below). 
TRW also does not require us to reverse our decision. 
Appellant has shown no legal error in this regard. 
Whether the Board Failed to Consider Harm to Appellant 
Appellant contends that the Board committed legal error by failing to consider 
whether a suspension would harm appellant. Appellant is not correct. The Board 
considered the element of damage or harm to appellant in its opinion. KBR, 13 BCA 
~ 35,243 at 173.,021. That appellant may disagree with the Board's conclusion is not a 
basis for granting a motion for reconsideration. 
Judicial Economy and Case Administration 
Appellant claims legal error insofar as the Board's consideration of judicial 
economy was inconsistent with its administration of the appeals in the weeks leading up 
to the trial date. We do not agree. 
It is true that there was a flurry of activity in these appeals in the weeks prior to the 
trial date. However that activity was driven by the parties, not by the Board. As 
appellant is well aware, discovery at the Board in the first instance is voluntary and 
consensual. The Board only gets involved in discovery matters when the parties do not 
cooperate, and a party seeks the Board's assistance. The Board's assistance was sought 
here, and it was sought late in the discovery period. 
Accordingly, the reason why the parties had to "scramble" (appellant's term) to 
take multiple depositions in January, 2013 was because the government moved for an 
Order on Depositions on 5 December 2012 (which the Board granted on 19 December). 
In fact, this motion was based on appellant's refusal to provide contact information for a 
4 

number of the proposed deponents. Appellant will also remember that it was briefing the 
subject motion to suspend or dismiss the appeals in December 2012, concurrent with this 
deposition dispute. 
Also included in this flurry of activity was the government's 14 January 2013 
motion to revise the pretrial schedule and postpone the hearing date and appellant's 
opposition dated 22 January 2013, which motion the Board denied on 25 January 2013. 
The Board denied this motion based upon the grounds asserted by the government, i.e., 
that the government had insufficient time to prepare for trial. The Board's ruling had 
nothing to do with the FCA action. Given that the parties presented their motions and 
arguments to the Board on the eve of trial, it is not at all surprising that the Board's 
decisions were issued on the eve of trial. 
Appellant also obscures the differences between discovery rulings and opinions 
issued by the Board. The former are issued by a single judge and may be issued 
relatively quickly; the latter are issued by a Board panel and take additional time and 
require additional consensus. 
In sum, appellant's argument that the Board "requir[ed] both parties to undergo a 
Herculean effort to complete discovery" only to later "reverse course" (app. mot. at 11) is 
an unfair characterization, and fails to recognize that the parties were responsible for the 
compression of the schedule in the weeks prior to the trial date. Appellant has 
demonstrated no legal error in this regard. 
With respect to other considerations of judicial economy by the Board, appellant 
contends that the Board committed legal error by concluding that the federal district court 
has jurisdiction to issue judgment on KBR's affirmative monetary claim under the 
Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109. Appellant is incorrect. The 
Board did not conclude that the court has jurisdiction to issue judgment on KBR's 
affirmative monetary claim under the CDA. Rather, the Board noted that since the 
relevant parties and facts will be before the court the parties "will be able to develop a 
full and 
complete record with respect to the REAs and how they were prepared, 
submitted and settled" under which circumstances ''there is a greater chance that 
resolution of the FCA action will resolve all outstanding issues." KBR, 13 BCA ~ 35,243 
at 173,021. For example, if the parties resolve the FCA action through settlement, there 
is a greater chance that the settlement will address the value of the REAs and the 
allowability of the costs under the contract so as to resolve the CDA claims. If the parties 
go to trial in the FCA action and the court finds that KBR acted properly in evaluating 
and/or paying on the REAs, there is a greater chance that such a finding will also resolve 
these CDA claims. On the other hand ifthe court finds that KBR committed fraud in the 
submission of the invoiced REA payments to the government, there is a greater chance 
that such a finding will also resolve the CDA claims. 
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Appellant has not demonstrated any legal error in this regard. 
Concurrent Litigation 
Appellant contends that the Board committed error in granting the government's 
motion because there will be no overlap of discovery or trial between the two forums. 
However the Board did not state that there would be any such "overlap." Rather, the 
Board stated that with the suits proceeding in tandem it would be "inevitable that in 
addressing the reasonableness ofKBR's settlement of these REAs we will be considering 
evidence related to the merits of the REAs and finding facts that are also part of the 
government's claim of REA fraud," and there would be "likely confusion that would 
result from the concurrent litigation of common issues." KBR, 13 BCA ~ 35,243 at 
173,020-21. The terms "in tandem" and "concurrent" were used to recognize the obvious 
nature of the parallel proceedings addressing common fact issues, and did not mean that 
the parallel proceedings were moving forward in lockstep. Appellant has shown no legal 
error in this regard. 
Duration of Dismissal Without Prejudice 
The Board dismissed this appeal without prejudice, subject to reinstatement within 
three years from date of decision. This three-year period is a maximum period. It is not a 
suspension of "indefinite duration" as appellant suggests. Indeed, by fixing this 
maximum period, the Board rejected the government's request for an indefinite 
suspension. To the extent this rejection was not expressly stated, we hereby expressly 
reject the government's 
request for indefinite suspension. 
The Board's decision also made clear that reinstatement of these appeals need not 
await three years; reinstatement may be had within the three-year period if and when 
necessary. The Board will consider reinstatement at any time, based on motion from 
appellant citing any material change in circumstances. 
The Board was also of the view that a three-year period "allows a reasonable period of 
time for the resolution of the FCA action." KBR, 13 BCA ~ 35,243 at 173,021. With respect 
to published federal court statistics, we take judicial notice of Table C-5, "U.S. District 
Courts-Median Time Intervals From Filing to Disposition of Civil Cases Terminated, by 
District and Method of Disposition, During the 12-Month Period Ending December 31, 
2012," which indicates that the median time interval from filing to trial decision in the Central 
District of Illinois was 32.3 months. See http://www. uscourts.gov/statistics. Given the 
parties' recognition that some additional time may be required in the FCA action attributable 
to First Kuwaiti being a foreign co-defendant, these statistics support the Board's assessment 
that a maximum suspension period of 36 months is reasonable. Of course, if the FCA action 
is resolved earlier, then reinstatement may be sought earlier at the Board if necessary. 
6 

Appellant has not demonstrated any legal error regarding the duration of this dismissal 
without prejudice. 
CONCLUSION 
We have considered appellant's remaining arguments but are unpersuaded that 
they require reversal of our decision. For reasons stated herein and in our earlier 
decision, we believe that the government has met its burden of proof and we affirm the 
dismissal of this appeal without prejudice under Board Rule 30 for a maximum period of 
36 months from the date of the original decision. 
Dated: 6 August 2013 
I concur 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
ministrative Judge 
Armed Services Board 
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. 57530, 58161, Appeals of 
Kellogg Brown & Root Services, Inc., rendered in conformance with the Board's Charter. 
Dated: 
7 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals