THIS OPINION WAS INITIALLY ISSUED UNDER
PROTECTIVE ORDER AND IS BEING RELEASED TO THE PUBLIC
IN REDACTED FORM ON MARCH 26, 2014
RESPONDENT’S MOTION TO DISMISS FOR LACK OF JURISDICTION DENIED;
APPELLANT’S MOTION FOR SUMMARY RELIEF DENIED: March 7, 2014  
CBCA 3112, 3113, 3318
CB&I FEDERAL SERVICES LLC,
Appellant,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent.
Thomas A. Lemmer, Phillip R. Seckman, and Amy M. Siadak of McKenna Long &
Aldridge LLP, Denver, CO, counsel for Appellant.
Audrey H. Liebross, Jeffrey D. Webb, and Jessica Lane Day, Office of Chief Counsel,
Federal Emergency Management Agency, Department of Homeland Security, Washington,
DC, counsel for Respondent.
Before Board Judges SOMERS, HYATT, and POLLACK.
SOMERS, Board Judge.
The Federal Emergency Management Agency (FEMA), Department of Homeland
Security, moves to dismiss this appeal for lack of subject matter jurisdiction.  FEMA


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CBCA 3112, 3113, 3318 2
contends that appellant, Shaw Environmental, Inc. (Shaw),1 changed its claimed theory of
recovery in its appeal from the one asserted in its certified claims before the contracting
officer.   Shaw opposes the motion and moves for summary relief on the ground that it is
entitled to legal costs claimed because these costs are allowable direct costs under this cost-
type contract.  FEMA opposes Shaw’s motion for summary relief.  For the reasons set forth
below, we deny both FEMA’s motion to dismiss and Shaw’s motion for summary relief.  
Background
Under contract HSFEHQ-05-D-0573 and task order 15 (collectively, the contract),
Shaw has appealed three contracting officer final decisions on a deemed denial basis,
alleging that FEMA has failed to reimburse its properly claimed legal costs.  These legal
costs resulted from multi-district litigation (MDL) in which several plaintiffs, individually
and on behalf of a class of similarly situated persons, sued contractors, including Shaw, for
damages as a result of alleged exposure to formaldehyde found in FEMA trailers.2
In the past, FEMA has paid Shaw’s litigation expenses arising from this litigation. 
See, e.g., Shaw Environmental, Inc. v. Department of Homeland Security, CBCA 2177, et al., 
1 By joint motion dated February 24, 2014, the parties seek to change
appellant’s name to CB&I Federal Services LLC (CFS), advising us that appellant and the
Government have recently novated the contract relevant to these appeals, substituting CFS
for Shaw as the party to the contract with the Government.  We grant this motion and have
amended the caption accordingly.  However, for the purposes of this decision, we continue
to refer to the contractor as Shaw Environmental, Inc. (or Shaw), the name used by the
contractor during the relevant events.   
2 As noted in our previous decision, the litigation included a case styled FEMA
Trailer Formaldehyde Products Liability Litigation Multi District Litigation, No. 07-1873,
in the United States District Court for the Eastern District of Louisiana (the MDL litigation). 
By order dated September 27, 2012, the court granted final certification of the settlement
class, approved the proposed settlement between the MDL plaintiffs and the contractors, and
dismissed the pending class actions with prejudice.  Shaw Environmental, Inc. v. Department
of Homeland Security, CBCA 2177, et al., 13-1 BCA ¶ 35,188, at 172,666 (2012).  

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CBCA 3112, 3113, 3318 3
13-1 BCA ¶ 35,188 (2012).  Now, however, FEMA has denied payment of Shaw’s three
most recent certified claims, which requested a combined total of $838,396.23 in legal costs.3 
In our previous decision, we stated, in part, as follows:   
[T]he contract and task order 15 are “cost-reimbursable,” permitting
reimbursement for allowable costs under Federal Acquisition Regulation
(FAR) 52.216-7.  See 48 CFR 52.216-7 (2005) (FAR 52.216-7).  The letter
contract stated that the contracting officer shall determine allowable costs in
accordance with the applicable cost principles in part 31 of the FAR.  The
contract incorporated by reference FAR 52.230-2, Cost Accounting Standards
(Apr. 1998),1 and FAR 52.230-6, Administration of Cost Accounting
Standards (Apr. 2005).  The contract included FAR 52.216-26, Payments of
Allowable Costs Before Definitization (Dec. 2002). 
1   FAR Part 30 establishes procedures to be followed in the administration of
contracts subject to the Cost Accounting Standards (CAS).  For a discussion
of these procedures, see Sikorsky Aircraft Corp. v. United States,
105 Fed. Cl. 657, 662-63 (2012).
Shaw Environmental, Inc., 13-1 BCA at 172,665-66.  
Shaw incurred legal costs defending itself in these actions.  Shaw states that while it
allocates typical legal costs as indirect costs, here, Shaw allocated the legal costs incurred in
response to the MDL litigation as direct costs because these costs arose from different
circumstances than its traditional legal costs.  Prior to the MDL litigation, Shaw had not
previously incurred legal costs defending itself in a mass-tort litigation predicated on alleged
defects in government-furnished property.  
During the course of the MDL litigation, Shaw contacted Zurich Insurance Group
(Zurich), the company with which Shaw had obtained its general liability insurance, as
required by FAR 52.228-7 (Mar. 1996).  The way Shaw sees it, under the insurance policy,
Zurich should cover all defense costs and liability arising under the MDL once those costs
3 Shaw seeks $567,099.27 for a certified claim dated August 21, 2012;
$218,994.94 for a certified claim dated October 2, 2012; and $52,302.02 for a certified claim
dated January 16, 2013.  Shaw appealed each claim to the Board.  The docketed claims,
CBCA 3112, 3113, and 3318, have been consolidated.

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CBCA 3112, 3113, 3318 4
exceed the $750,000 deductible.  Zurich apparently disagreed, taking the position that each
plaintiff in the MDL constituted a separate occurrence, which requires costs exceeding
$750,000 for each plaintiff.  Shaw also says that Zurich informed it that the insurance
company would not be required to pay any indemnification or defense costs until Shaw fully
satisfied all deductibles.  Thus, as explained by Shaw, Zurich would not reimburse Shaw for
any liability or legal costs relating to the MDL under the insurance policies.  
On April 13, 2012, Shaw’s counsel informed FEMA’s counsel that the district court
judge had ordered the parties to engage in mediation.  On April 27, 2012, Shaw presented
FEMA with the parameters of an agreement, under which Shaw and the other class action
defendants reached a tentative settlement with the plaintiffs. *************
************************************************************************
******************************************************************** and
sought FEMA’s concurrence.  Shaw’s counsel stated in an email message: 
*************************************************************
*************************************************************
*************************************************************
**************************************************************
On May 1, FEMA informed Shaw’s counsel that it would not endorse the settlement but that
FEMA would consider the possibility of approval later, “subject to its review of Shaw’s
determination as it relates to Zurich.” ********************************
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**************************************************************************
On May 25, 2012, Shaw and Zurich entered into a non-public settlement agreement.
As detailed by Shaw, pursuant to this agreement, *******************
*******************************************************************  These
costs are the same costs for which Shaw seeks reimbursement from FEMA. 
 
Shaw submitted three certified claims to the contracting officer.  In each claim Shaw
stated, in pertinent part:
Shaw is entitled to reimbursement of the Legal Costs incurred to date, as well
as future costs, as allowable costs under the allowable cost and payment and
other provisions of the above contract.  Shaw believes that the Legal Costs, as
well as any and all costs associated with future invoices related to the same
matters, are fully allowable as direct expenses to the Contract and any failure

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CBCA 3112, 3113, 3318 5
to reimburse Shaw for the Invoice is a breach of the Contract.  Finally, Shaw
notes that, to date, its insurance carrier has not reimbursed it for any of its
Legal Costs.  
The contracting officer did not issue a final decision on any of these claims.  Shaw appealed
the three claims on a “deemed denial” basis. 
Discussion
I. Motion to Dismiss
Subject matter jurisdiction may be challenged at any time.  United States v. Grumman
Aerospace Corp., 927 F.2d 575, 580 (Fed. Cir. 1991).  Appellant bears the burden of
establishing subject matter jurisdiction by a preponderance of the evidence.  McNutt v.
General Motors Acceptance Corp., 298 U.S. 178, 189 (1936).  In assessing whether the
Board has subject matter jurisdiction, the allegations of the complaint should be construed
favorably to the pleader.  Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Ron Anderson
Construction, Inc. v. Department of Veterans Affairs, CBCA 1884, et al.,
10-2 BCA ¶ 34,485.  When a motion for lack of subject matter jurisdiction challenges the
truth of alleged jurisdictional facts, the Board may consider relevant evidence beyond the
pleadings to resolve disputed facts.  Ron Anderson Construction, Inc.  
The Board possesses jurisdiction over appeals from claims submitted in writing to the
contracting officer for a decision that were either denied in writing or were deemed denied. 
Walsh/Davis Joint Venture v. General Services Administration, CBCA 1460,
10-2 BCA ¶ 34,479.  There is no requirement that a claim be presented in any particular form
or use any particular wording, but the submission does need to provide the contracting officer
with “a clear and unequivocal statement that gives the contracting officer adequate notice of
the basis and the amount of the claim.” Contract Cleaning Maintenance, Inc. v.
United States, 811 F.2d 586, 588 (Fed. Cir. 1987).  The reason for this requirement is to
allow the contracting officer to receive and pass judgment on the contractor’s entire claim. 
Scott Timber Co. v. United States, 333 F.3d 1358, 1366 (Fed. Cir. 2003).  Here, Shaw
submitted its claims to the contracting officer, and, as permitted by the Contract Disputes
Act, Shaw appealed to the Board when the contracting officer did not timely issue a final
decision.
FEMA argues that Shaw changed its theory of recovery, noting that, at the claim
stage, Shaw sought reimbursement of legal costs as allowable costs under the contract.  By
contrast, in its amended complaint, Shaw alleges that the costs are both allowable and

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CBCA 3112, 3113, 3318 6
reimbursable under the contract, and that FEMA breached the contract by failing to
reimburse the amounts sought.  Thus, FEMA concludes that by changing its claim from
entitlement under various contract provisions to that of  breach of contract, Shaw has raised
a matter before the Board that it never presented to the contracting officer.
In evaluating respondent’s contention that we lack jurisdiction to consider Shaw’s
claims, we must decide whether the claims originally presented to the contracting officer can
reasonably be viewed as encompassing the matters raised in appellant’s complaint.  This
standard does not require rigid adherence to the exact language or structure of the original
administrative claim.  Rather, when a new claim is asserted that was not directly addressed
in the appellant’s original claim submission, the tribunal must examine whether the newly
presented claim derives from the same operative facts, seeks essentially the same relief, and,
in essence, merely asserts a new legal theory for the recovery originally sought.  Scott Timber
Co., 333 F.3d at 1365.  “To determine whether two or more separate claims . . . exist[], the
court must assess whether . . . the claims are based on a common or related set of operative
facts.  If the court will have to review the same or related evidence to make its decision, then
only one claim exists.”  Placeway Construction Corp. v. United States, 920 F.2d 903, 907
(Fed. Cir. 1990).  
Here, Shaw claims that it incurred legal costs defending itself against the MDL, that
FEMA is obligated to reimburse it for these costs pursuant to the contract, and that FEMA
failed to pay the legal costs following Shaw’s submission of invoices under the contract.  As
FEMA acknowledges, Shaw’s claims also expressly inform the contracting officer that Shaw
considers any failure to reimburse Shaw for the amounts invoiced to be a breach of the
contract.  Shaw tells the contracting officer this in so many words, stating in each claim (as
noted above):
Shaw believes that the Legal Costs, as well as any and all costs associated with
future invoices related to the same matters, are fully allowable as direct
expenses to the Contract and any failure to reimburse Shaw for the Invoice is
a breach of the Contract.  
(Emphasis added.)  We find that Shaw’s theory of recovery is similar enough to give FEMA
adequate notice of the basis of the claims.  The cause of action in the complaint arose from
the same operative facts and requested relief identical to that asserted in the claims.  The
claims use the term “breach,” as does the complaint.  To the extent that the phrasing in the
complaint differs slightly from that of the claims, we do not find such variance significant. 
We possess jurisdiction to entertain these appeals.  

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CBCA 3112, 3113, 3318 7
II. Motion for Summary Relief
In its motion for summary relief, Shaw asserts that it is entitled to reimbursement of
these legal costs from FEMA as allowable direct costs under the contract.  
FEMA opposes the motion for summary relief on the ground that material facts
remain in dispute.  FEMA contends that Shaw’s claimed costs are not reimbursable as
allowable costs under FAR 52.216-7 and that Shaw has not established the absence of
genuine issues of material fact critical to demonstrating that its claimed costs comply with
the requirements set forth in FAR 31.201-2.  Specifically, FEMA contends that genuine
issues of material fact preclude Shaw from establishing that its costs are reasonable,
allocable, in accordance with the standards established by the Cost Accounting Standards
Board, within the terms of the contract, and within any limitations set forth in FAR part 31. 
Also, FEMA contends that Shaw has not satisfied the preliminary requirements of
FAR 52.228-7, the contract’s insurance clause.  Finally, FEMA asserts that it needs discovery
before it can respond to the motion.  
   
In its reply, Shaw argues that it has established that it is entitled to its legal costs
because it has shown that these costs are reasonable, allocable, and properly charged as direct
costs under the contract in compliance with the CAS and with Shaw’s disclosed accounting
practices.  Shaw contends that FEMA has failed to identify a genuine issue of material fact,
and that the facts identified by FEMA do not reach that standard.  To the extent that FEMA
has identified any potential issues, Shaw claims the issue of whether the undisputed costs
were properly chargeable to the contract is a legal contract interpretation that the Board may
decide in a motion for summary relief.  
It is well established that summary relief will not be granted if the moving party fails
to establish the absence of any genuine issue of material fact.  Celotex Corp. v. Catrett,
477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).  If there are
any issues of material fact, then summary relief is not proper.  Mingus Constructors, Inc. v.
United States, 812 F.2d 1387 (Fed. Cir. 1987); 6th & E Associates v. General Services
Administration, CBCA 1802, 10-2 BCA ¶ 34,596.  The moving party shoulders the burden
of proving that no genuine issue of material fact exists.  Patrick C. Sullivan v. General
Services Administration, CBCA 936, 08-1 BCA ¶ 33,820.  All justifiable inferences must be
drawn in favor of the nonmovant.  Walsh/Davis.  
FEMA argues that Shaw is not entitled to summary relief because it has failed to
establish the absence of any issue of material fact.  FEMA identified the issues of material
fact it believes are in dispute in its statement of genuine issues, but, in addition, FEMA seeks

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CBCA 3112, 3113, 3318 8
discovery in order to determine whether additional facts may exist that are relevant in
resolution of this dispute.  
At this point in the litigation, FEMA has not had the opportunity to engage in
discovery.  FEMA disputes that the costs claimed by Shaw are reasonable, as required under
FAR 31.201-3.  Without discovery, FEMA cannot verify that the costs claimed for trial
consultants, travel, hourly rates charged by outside counsel, or the number of hours charged
are reasonable.  Likewise, as to the attorney fees, FEMA contends that Shaw has not
provided the terms for the cost-splitting arrangements with its co-defendants.  To the extent
that Shaw has provided documents to support its claimed costs, FEMA contends that Shaw
aggregated allowable and unallowable costs in a way that inhibits FEMA from identifying
which costs are properly reimbursable.  FEMA argues that Shaw has failed to demonstrate
why it needed a trial consultant at all in these cases. 
In addition to expressing concerns about its ability to properly respond to Shaw’s
assertions concerning the legal expenses allegedly incurred, FEMA asserts that a genuine
dispute exists as to whether Shaw has established that it is entitled to be reimbursed under
FAR 52.228-7.  FEMA contends, among other things, that it is entitled to discovery to
determine whether Shaw could have been compensated from its insurers, meaning Zurich and
other potential insurers, for the costs it seeks in these appeals. 
Shaw disagrees.  Shaw notes that it has provided the Government with detailed
invoices and documentation establishing that the legal costs charged are reasonable.  Shaw
claims that only the FEMA contracting officer or the contracting officer’s representative may
raise a challenge to the reasonableness of the costs, and that the contracting officer has not
done so.  Shaw also relies upon the fact that the contracting officer has reimbursed Shaw for
the very same type of legal costs that had been charged under other Shaw invoices.  As to
FEMA’s challenge to the reasonableness of the costs, Shaw says that “even if the Board were
to conclude that there are properly disputed facts as to the reasonableness of the amount of
Legal Costs, or that certain specific Legal Costs have been properly challenged on the basis
of reasonableness, the Board should still decide that Shaw is entitled to partial summary
judgment on entitlement to the Legal Costs, and leave the analysis of specific cost items for
further proceedings on the issue of quantum.”  Appellant’s Reply to Respondent’s Response
to Appellant’s Motion for Summary Relief at 4-5.  To FEMA’s argument that Shaw should
have provided various documents to support its costs, Shaw says that the contracting officer
never requested such documentation. 
In light of the fact that FEMA has not yet had the opportunity to engage in discovery,
it is premature to grant Shaw’s motion for summary relief.  Summary relief is only

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CBCA 3112, 3113, 3318 9
appropriate after the parties have been given an “opportunity to discover information that is
essential to [its] opposition.”  Burnside-Ott Aviation Training Center, Inc. v. United States,
985 F.2d 1574, 1582 (Fed. Cir. 1993) (reversing grant of summary judgment because trial
court denied discovery and nonmovant was not permitted with an opportunity to defend its
case) (citing Liberty Lobby, Inc., 477 U.S. at 250 n.5).
Decision
Respondent’s motion to dismiss for lack of jurisdiction is DENIED.  Appellant’s
motion for summary relief is DENIED.
____________________________
JERI KAYLENE SOMERS
Board Judge
We concur:
_____________________________ ____________________________
CATHERINE B.  HYATT HOWARD A. POLLACK
Board Judge Board Judge