ARMED SERVICES BOARD OF CONTRACTAPPEALS
Appeals of

-- ) ) Kellogg Brown & Root Services, Inc. ) ASBCA Nos. 58518, 59005 ) Under ContractNos. DAAA09-02-D-0007 etal. )

APPEARANCES FORTHE APPELLANT: Jason N. Workmaster, Esq. Patrick J. Stanton, Esq.

Covington & Burling LLP Washington, DC

APPEARANCES FORTHE GOVERNMENT: E. Michael Chiaparas, Esq. DCMA ChiefTrial Attorney Douglas R. Jacobson, Esq.

Trial Attorney Defense ContractManagementAgency Bloomington, MN

OPINION BYADMINISTRATIVE JUDGE PAGE ON APPELLANT'S MOTIONFOR SUMMARY JUDGMENT

INTRODUCTION
Kellogg Brown & Root Services, Inc. (KBRSI, appellant orthe contractor) appeals from two contracting officers' final decisions (COFDs) by the divisional administrative contracting officer (DACO) ofthe Defense ContractManagement Agency (DCMA). The COFD of 14 August 2012 assertedthatthe contractor did notproperly allocate certain risk management insurance costs in compliancewith Federal CostAccounting Standards (CAS) (R4, tab 14), and the COFD of29 October2012 demanded repayment of $8,838,619 in alleged overcharges (R4, tab 19). These COFDs address a number of government1contracts betweenthe government and KBRSI,2 during 2006; the parties

1 KBRSI contracted with the Army (R4, tab 1at 1 ). The contracting officerwas employed by DCMA, andthe audits were performedby DCAA. We referto the Army and DCMA as "the government" and to DCAAby its acronym. 2 Appellant advised that "the entities and the names ofthe entities have varied overtime as a result oforganizational changes" (app. mot. at 6 n.8). 

### It explains that KBRSI "currently holds the contracts that are the subject" ofthese appeals (compl. 

### ii 8). KBRSI is abusiness segment ofKellogg Brown & Root (KBR) (app. mot. at 5, app'x B, declaration dated 21 February 2014 ofCharlie Kerr, senior manager ofKellogg, Brown & RootLLC (formerly KBRSI priorto 30 June 2006) (Kerr decl.), 

### ii 5) andhave stipulated ContractNo. DAAA09-02-D-0007 as the representative contract for purposes ofthese appeals.3
Initially, appellant filed a "motion forjudgment"without specifying whetherit
was a motion to dismiss or a motion for summaryjudgment (app. mot. at 2). That motion
was predicatedupon the alleged untimeliness ofthe government's affirmative claims; KBRSI maintained the government knew or should have known that its claims accrued
more than sixyears beforethe COFDs were issued and are in violation ofthe Contract Disputes Act (CDA), 41 U.S.C. § 7103 (app. mot. at 2-3). Afterthe United States Court ofAppeals for the Federal Circuitrendered its decision in SikorskyAircraft Corp. v. UnitedStates, 773 F.3d 1315 (Fed. Cir. 2014) (Sikorsky), the Board conducted an oral argument onthe impact ofthat decision onthis appeal, and allowed supplemental briefing. Despite its continuing disagreement with that opinion, appellant states that "KBRSI'smotion now is one for summaryjudgmentunderASBCA Rule 7(c)" (app. supp. br. at 4). The contractor's motion has been extensively briefed.4

Forreasons statedbelow, we deny the motion.

Halliburton is the corporatehome office (app. mot. at 5). On 5 April 2007, "Halliburton separated into twopublic companies

- Halliburton and KBR," and that since the same date, "KBRSI has been a subsidiary of.KBR" (compl. irir 11-12). We note that documents in the record occasionally refer to Energy Services Group (ESG), another business segment ofHalliburton. Forpurposes ofthis motion only, references to KBR and KBRSI both referto the contractor. 3 The Boardhas recognized that a single DCAA audit or agency COFD may encompass multiple contracts, and has heldthatit is sufficient for purposes ofdetermining jurisdictionthatthe parties designate a representative contract. See, e.g., Leidos, Inc., PklaScienceApplicationsInternational Corp., ASBCANo. 59076, 14-1 BCA ir 35,621; and The Boeing Company, ASBCANo. 58587, 14-1BCAir35,470. In the instant appeals, neither COFD specifies the affected contracts. Forpurposes ofruling
onthe motionbeforeus, we accept the parties' 15 April 2015 stipulation as to the affected contracts but note thatthe currentrecord contains only excerpts from ContractNo. DAAA09-02-D-0007 (R4, tab 1), whichthe parties identify as the LOGCAP III contract. Forease ofreference, we citethis contract number in captioningthe decision. 4 Wereferto the motion and briefs as follows: appellant's motion for summary judgment (app. mot.); government's opposition to appellant's motion (gov't opp'n); appellant's reply tothe government's opposition (app. reply br.); appellant's briefinresponse to oral argument (app. resp.); government's briefin response to oral argument (gov't resp.); government's supplemental briefing on Sikorsky (gov't supp. br.); appellant's supplemental briefing on Sikorsky (app. supp. br.); and appellant's reply to the government's supplemental briefing on Sikorsky (app. supp. reply).

2STATEMENT OF FACTS FORPURPOSES OF THE MOTION

In 2006, Brown and Root Services, a division ofKellogg Brown & Root, Inc. (KBR), was performing a number ofcontracts for the United States Government and providing a broadrange ofservices. Forexample, KBRheldthe following major contracts: (1) the Balkans Support Contracts (BSC), under which KBRprovided logistical and life-support services to the Army in the Balkans region; (2) the Logistics Civil Augmentation Program (LOGCAP) III contract, under which KBRprovided logistical and life-support services to the Army that included but were not limited to: dining facility services, transportation, billeting, waste disposal, water and ice production and delivery, laundry, fuel delivery, and morale, welfare, and recreation services; and (3) the Restore Iraqi Oil (RIO) contract, under which KBRprovided services related to the restoration ofthe Iraqi Oil infrastructure. (See compI.**~** 21; answer**~** 21; R4,5tab 1) The government awarded ContractNo. DAAA09-02-D-0007, the LOGCAP III contract,
on 14 December 2001 (R4, tab 1at 1) and the RIO contract on 8 March 2003. Many of the contracts and orders which KBRwas performing in 2006 were cost-reimbursement or time-and-materials contracts (app. mot. at 1; gov't opp'n6 at 1 ).

The applicable contracts contain Federal Acquisition Regulation (FAR) 52.230-2, COSTACCOUNTING STANDARDS (APR 1998) (app. mot. at 4-5; gov't opp'n at 1; see, e.g., R4, tab 1at 3).

Priorto and during 2006, KBR divided its insurance coverage into a "Primary" program and an "Excess Liability [EL]" program. The Primaryprogram consisted ofthe primary layer ofself-insurance for Worker's Compensation (WC), Auto Liability (AL), and General Liability (GL) (app. mot. at 5; gov't opp'n at 1). The EL program, also referred to as the "General Insurance" program, consisted ofa share ofannual insurance policy premiums, purchased fronting policies for WC, AL and GL, and insurance administration expenses, such as the insurance orrisk management department operation costs, broker service fees, the cost ofclaims processing, and actuarial fees (app. mot. at 5, Kerr decl.**~~** 1, 14; gov't opp'n at 1).7

Also prior to and during 2006, KBRhad three levels ofallocation under CAS for its EL program: (1) from corporate home office (Halliburton) to intermediate home office; (2) from intermediatehome office to segments; and (3) from segments to cost

5 In referring to the Rule 4 file, werely uponpage numbers affixed by the parties unless the document is already paginated. 6 Becausethe government failed to affixpage numbers to its briefin opposition to appellant's motion, the Board has done so to allow ready reference. 7 In its reply brief, KBRSI provided a second declaration from Charlie Kerr dated 2 June 2014 (app. reply br., app'xB (Kerr supp. decl.)).

3- objectives (app. mot. at 5-6; gov't opp'n at l; see also CAS 402 (definition of"cost objective") and CAS 403 (definitions of"home office" and "segment"). In the same period, KBRhad two levels ofallocation under CAS for its Primary program. The first
was from intermediate home office to segments, and the second from segments to cost objectives. (App. mot. at 6; gov't opp'n at 1)

An email from Floyd Green ofHalliburton dated 27 February 2004 to Alan Burningham ofDCAA forwarded the contractor's "2001-2003 Rate Development" schedule (2001-2003 Plan) for WC, GL, and AL. The information is provided in tabular, not narrative, form. (R4, tab 40)
By email transmitted 8 June 2004, KBR disclosed a change to the allocation basis for its EL program costs to segments from payroll to revenue for 2004 and 2005 ("2004 Plan: Burden & benefit rate support"). This information is in tabular form. (R4, tab 41) DCMA issued a Contractor Insurance Pension Review (CIPR) for FYs 2001 and 2002 on 29 July 2004 (R4, tab 43). Also on 29 July 2004, DCMAprovided its "Forward Pricing Rate Recommendation (FPRR) for [FYs 2003-2008], Brown and Root Services Operations, Kellogg Brown" (R4, tab 44).

A 23 November 2005 letter from Todd W. Bishop ofKBRto Jerry Conry, DCMA, transmitted KBRSI's "[FPRR] PROPOSAL 2006 PLAN [THAT] INCLUDES: HOME OFFICE ALLOCATIONPROCUREMENT SERVICE CENTER" (2006 Plan) (R4, tab 45).

On24 February 2006, KBRSI submitted "Revision 2-2005" in response to DCMA'srequest for additional information concerning "potential inadequacies" noted by DCAA (R4, tab 46). Item C2 "Description ofLine ofInsurance Coverage: Excess Liability" included the statement "These costs are, in effect, allocated to the various units in the group by collecting a general insurance charge, which is internally assessed against the payrolls ofthe respective business units" (id. at 299).

Halliburton allocated insurance administration expenses to KBRbased on a Transition Services Agreement (TSA) (app. mot. at 7 n.11; gov't opp'n at 1). On 27 July 2006, KBRprovided TSA information pertainingto allocation ofrisk management expenses to DCAA (R4, tab 53). The TSAprovided a table for "RISKMANAGEMENT" showing salaries, "Burdens@ 33%," and other costs with a bottom line "RiskMgmt KBR TSA PERMONTH" of$100,536.08 (id. at 346).
Throughout 2006, KBRregularly submitted invoices under its cost-reimbursement and time-and-materials contracts to the government on a twice-monthly basis. The invoices, which includedportions ofKBR's insurance costs andrelated expenses allocated according to KBR's practices, were regularly paidby the government. (App. mot. at 8-9, appendix A "Examples ofKBR'sDisclosures and the Government's Review

4

### ofKBR's Allocation Practices Priorto October 29, 2006" (app'xA); Kerr decl. 

## i!il 42-44; gov't opp'n at 2)

On 16 January 2006, KBR submitted its first invoice under Contract No. DAAA09-02-D-0007, a cost-reimbursement contract. The invoice included insurance costs and related expenses. The governmentpaid KBR based on this invoice
on 24 January 2006. (R4, tab 49; app. mot. at 9; Kerr decl. 

## i! 45; gov't opp'n at 2)

KBRSI provided DCMA with its Burdens & Benefits (B&B) proposal based upon the 2006 Plan on 20 April 2006 (R4, tab 20). This information included atable captioned as a "BURDEN SUMMARY

- EXCESS INSURANCE FOR2006 RATE DEVELOPMENT" for KBR, with a column for "2006 Plan Payroll" (id. 

### at 38).

On 27 April 2006, DCMArequested that the DCAA audit "KBRSI['s] [B&B] Rates Proposal for Fiscal Year 2006 Plan." DCMArequested that the audit be completed
on orbefore 30 May 2006. (R4, tab 27; app. mot. at 9; gov't opp'n at 2)

DCAAreviewedthe contractor's B&B rate proposal and requested additional information pertaining to the proposal and the costs it covered. KBRwas asked to provide the information by 21 June 2006. (R4, tab 47; app. mot. at 9; gov't opp'n at 2) KBR's Charlie Kerr replied on 22 June 2006, and noted that additional information was being assimilated for certain years and would be provided. An 

### attachmentto Kerr's email listed information furnished for the 2006 audit. (R4, tab 31) On 5July 2006, KBR further responded to the government's questions and advised that additional documentation would be provided (R4, tab 48) (app. mot. at 9; gov't opp'n at 2).

In an email of27 July 2006 (R4, tab 53), Kerr forwarded to DCAA's Julian Brown
a document described as "the backup and basis ofestimate for the TSA portion ofRM Accounting overhead" (id. 

### at 343), that included a table labeled "KBRTRANSACTION SERVICE AGREEMENT" (id. 

### at 346).

On 31August2006, DCAAnotified Kerr that it questioned KBR's allocation methods for certain insurance costs and related expenses as noncompliant with several CAS provisions. These included CAS 401 "Consistency in Estimating, Accumulating and Reporting Costs"; CAS 403 "Allocation ofHome Office Expenses to Segments"; CAS 416 "Accounting fot Insurance Costs"; and CAS 418 "Allocation ofDirect and Indirect Costs." (R4, tab 34; app. mot. at 9; gov't opp'n at 2) KBRSI responded on 5 September2006 regarding the contractor's allocated insurance and related expenses, and disagreed with the government's position thatthese expenses were charged in a mannernoncompliant with CAS (R4, tab 35 at 202-03; app. mot. at 9; gov'topp'n at 2).

As requested by DCMA, DCAA issued its "Report on Audit ofFiscal Year 2006 [FPRR] for Burdens & Benefits and Procurement Service Center" dated 30 October 2006

5(R4, tab 36; app. mot. at 10; gov't opp'n at 2). DCAA opinedthat KBR's allocation practices did not comply with CAS (R4, tab 36 at 5-6).

In 2010, DCAA again audited KBR's 2006 allocation methods for insurance costs and related expenses. On 22 September 2010, DCAA issued "AuditReport Number 3321-2006K19200006"with the subject line "Report on Noncompliance with CAS 416, Accounting for Insurance Costs." (R4, tab 2) According to the report's executive summary, KBRSI was noncompliant during the contractor's fiscal year [CFY or FY] 2006 due to the company's "practice ofallocating Home Office and insurance costto contracts using an allocation base that has no causal or beneficial relationship to the insurance expense." DCAA "estimate[d] $1.6 million dollars were misallocated in CFY 2006." (Id. at 8) The audit noted that "KBRSI is responsible for performance ofthe Logistics Civil Augmentation Program (LOGCAP Ill), Restore Iraqi Oil (RIO) program, Balkans Support Contracts, and Emergency [sic], and the Construction Capability Contract (CONCAP), to name a few" (id. at 18). A contract number is mentioned for only LOGCAP III, which is identified as Contract No. DAAA09-02-D-0007 (id. at 2).
Citing the results ofthe 22 September 2010 audit, the DCMA administrative contracting officer (ACO) on4 November 2010 issued a notice ofpotential noncompliancewith CAS 416. The ACO noted thatthe audithad disclosedthat the contractorwas "noncompliantwith CAS 416, Accounting for Insurance Costs and FAR Part 31 regarding the [B&B] rate" due to the manner in which KBR allocated "Home Office and insurance costs." The ACO cited FAR 30.605(b)(2)(ii), and requested KBR eitherto agree that it was not in compliance; advise why KBRconsideredthe existing practice to be in compliance; or submit a rationale to support a finding thatthe cost impact ofnoncompliance was not material. (R4, tab 3; app. reply at 2; gov't opp'n at 3)
Following DCAA's 2010 audit, KBRundertook an examination ofits Risk ManagementProgram, including its EL Program (app. mot. at 10; gov'topp'n at 3). On 14 January 2011, KBRtoldthe ACO that it agreed with some (but not all) ofthe government's assertions ofnoncompliance with CAS 416, and agreed to modify some of its allocation methods (R4, tab 5 at 31). The contractor asserted that "payroll is the factor which represents the causal relationship between insurance and benefiting cost objective." KBR agreed that "the KBRSI apportionment of[EL] costwould better be allocated to government contracts through a G&Apool on atotal cost input base." KBR'sresponse did not address the cost impact ofthe contractor's noncompliance with CAS 416. (Id. at 32; app. reply at 2; gov't opp'n at 4)

KBR on 1November2011 submittedto DCMA its "CAS Disclosure Statement Amendments Effective January 1, 2012" (R4, tab 22). KBRadvised that itwould provide additional information, and requestedthat the government consider "postponing arequest for a CAS cost impactproposal for the cost accountingpractice changes which are referenced in this Disclosure Statement submission until after KBRcompletes all ofits

6revised final rate proposals and submits them to your office." With this additional information, the contractor could provide a "completepicture ofthe potential cost impact in the aggregate

...related to changes KBR is making in its cost accountingpractices, together with potential overpayments that may have occurred." (Id. at 3 of26) KBR later credited the government with the difference in costs between the original allocation method and the revised allocation method (app. mot. at 11; gov't opp'n at 3; Kerr decl. 

### iJ 46).

KBRelaborated on its explanation aboutthe manner in which it intendedto allocate EL costs on 7 May 2012, but did not provide information regarding the cost impact ofits approach (R4, tab 10).

The 26 July 2012 DCAAAudit ReportNo. 3321-2012Nl7900001 was entitled "IndependentAudit ofKellogg Brown & Root Services, Inc. (KBR)'s ContractorFiscal Year (CFY) 2006 Cost Accounting Practice Changes for Allocation ofPurchased Insurance Premiums and Insurance Administrative Expenses" (R4, tab 13). This audit report examined KBR'srevised allocation method, and determined that KBR's allocation ofcertain insurance costs and related expenses for FY 2006 remained noncompliant with CAS 416 (id. at 115, 117-22). The report referenced prior audit reports dated 9 June 2010, 22 September 2010, and 29 October 2010 (id. at 116-17).
Although the 26 July 2012 audit report does not identify any contract between appellant and the governmentby number, the following statement is included: "Several other significant contracts are no longer active in supporting the military but are under audit including the Iraqi reconstruction contractRestore Iraqi Oil (RIO), the Balkans Support Contract (BSC), CONCAP II, Construction Capability Contract (CONCAP) III, and the GulfRegion Division (ORD) Oil formerly known as Project and Contract Office (PCO) Oil" (R4, tab 13 at 124). The contractorwas briefed on the audit at an exit conference on 26 July 2012, and the report indicated thatthe contractor said it would respond by 9 August 2012 to the findings in the audit report and state whether KBR agreed ordisagreed with each (id. at 118).

Karen Killgore, the DCMA DACO, issued a COFD on 14 August 2012 (R4, tab 14). The DACO concluded that "KBRis noncompliant with CAS 416, Accounting for Insurance Costs." The contractorwas required to "submit a description ofthe change necessary to correct" its noncompliance with CAS by 14 September 2012. (Id. at 133-34) In addition to otherrequirements, the DACO told KBRto "submit a General Dollar Magnitude (GDM) proposal in accordance with FAR 52.230-6(g)

...by September 14, 2012." The DACO advised that ifthe contractor did not comply, the government would withhold mon'ies from "each subsequentpayment up to the GDM estimate" and issue another COFD unilaterally adjusting the contracts or demanding repayment. The government did not assert a monetary demand in this COFD. (Id. at 135; app. mot. at 11; gov't opp'n at 4)

7KBRresponded to the 26 July 2012 DCAA audit on 16 August 2012. The contractor statedthat it did not agree with DCAA's findings, and did notprovide a cost impact for the alleged CAS noncompliance. (R4, tab 15) DCAA on 5 September 2012 advised DCMAthat it hadreviewed KBR'sresponse, butmaintained the position expressed in its 26 July 2012 audit report (R4, tab 16 at 142, 150).

On 27 September 2012, KBRprovided DACO Killgore with its GDM proposal for the cost impact ofappellant's CAS 416 noncompliance (R4, tab 17). KBR advisedthat "[t]he overall impact to the KBRSI segment is ($1,420)M" (id. at 153). The contractor's GDMwas reviewed by DCAA, which on 16 October 2012 provided the DACO with a Rough Order ofMagnitude (ROM) ofthe cost impact ofKBR's noncompliance with CAS 416 for CFY 2006 (R4, tab 18). The total ROM of$8,838,619, as calculatedby DCAA, included $6,480,023 plus $2,358,596 in interest (id. at 159).

DACO Killgore issued a "Contracting Officer's Final Decision and Demand for Payment ofDebt" on 29 October2012 (R4, tab 19). The COFD referenced the government's 14 August 2012 COFD, which advised that KBR failed to comply with CAS 416 in CFY 2006, and added thatthe contractor failed to comply with CAS 403. The 29 October 2012 COFD faulted the contractor for not complying with these CAS provisions "inthe allocation ofinsurance costs" for AL, GL, and EL. (Id. at 178) Killgore also alleged that "certain allocation bases proposedby KBR in its schedule dated May 18, 2012 for AL, GL, [EL], Commercial Crime, Commercial Property, Directors & Officers Liability [D&OL], and Insurance AdministrationExpense continue to be noncompliant with [both] CAS 416-40(b) and CAS 403-40(b)(4)," which "providethat insurance premiums shouldbe allocated based on the factors used to determine the premium" (id. at 179). The DACO "assert[ed] a Government claim and demand in the amount of$8,838,619" (id. at 178). Killgore noted that KBR's proposed changes were not adequate to bring its accounting practices into CAS compliance (id.), and that the government regarded it as "prudentto rely on DCAA's calculation ofthe cost impact" because "KBRfailed to provide a compliantpractice for certain allocation bases" (id. at 180). The DACO "referenced and relied upon" the following documents in making her decision: the DCAAAudit Report of26 July 2012; the DACO Determination of Noncompliance dated 14 August 2012; KBR's GDM Proposal dated 27 September 2012; and DCAA's 16 October2012 Memorandum for Record (id. at 178).

The 29 October 2012 COFD was timely appealedto the Board on 24 January 2013, and was docketed as ASBCANo. 58518. With respect to the 14 August 2012 COFD, KBRSI filed a complaint in the United States Court ofFederal Claims on 13 August 2013. The court granted KBRSI's motion to transferthat action to the ASBCA by order dated 8November 2015. We docketed that matter as ASBCA No. 59005 and consolidated it with ASBCA No. 58518.

8DECISION

KBRSI moves for summaryjudgment, asserting that undisputed material facts show that it is entitled tojudgment as a matter oflaw becausethe government's claims accrued
more than sixyears beforethese were asserted and are untimely underthe CDA, 41 U.S.C. § 7103. Iturges that several documents showthatthe government knew or should have known that its claims had accrued morethan six years beforebeing made. This includes the government's nonmonetary claim of 14 August 2012 which stated that appellant was not in compliance with CAS 403 and 416, and its monetary claim of29 October 2012 that demanded the contractorrepay $8,838,619 in overcharges associated with the CAS violations. (App. supp. br. at 4-8) The contractor's CAS violations and resulting overcharges arise from the manner in which KBR in 2006 allocated insurance costs and related expenses to cost-reimbursement and time-and-materials contracts. KBRSI clarifies that, for purposes ofits motion, '"insurance' refers to risk management insurance, such as [AL], [GL], Commercial Property [CP], and [D&OL] insurance," but does not include "group insurance such as health ordental insurance" (app. mot. at 2 n.2).
Appellant views the government's COFDs as asserting a single claim. Itcontends that DCMA asserted a single claim for repayment on 29 October2012, more than six years afterthe claim accrued (app. mot. at 19). Appellant alleges that "the government bases the [29 October2012] claim on a single event

- the alleged noncompliance with CAS in allocating insurance costs andrelated expenses." Therefore, "the government's single overpayment claim in its October 29, 2012 Final Decision is barredby the [CDA's statute oflimitations] as untimely" (id. at 20). KBRSI states that even ifthe "Board determines thatthe October 29, 2012 Final Decision asserts an unspecified number of individual claimsbased on unspecified invoices paid by the governmentunder unspecified contracts and orders, all invoices paidpriorto October 29, 2006 are barred" (id. n.20). KBRSI further contendsthat, "Evenwhen [the two COFDs are] viewed as separate claims, which KBRSI does not concede, both claims are untimely" (app. reply at 1n.1).

Forpurposes ofdeciding the motion, we treat the government's 14 August 2012 and 29 October2012 COFDs as separate government claims.

I. The CDA 's Statute of Limitations andtheAccrualof Claims

As initially filed, appellant's "motion forjudgment"asserted thatthe Boardwas withoutjurisdictionbecausethe government's claims violatedthe CDA's statute of limitations as set forth in 41 U.S.C. § 7103 (app. mot. at 2-3). Subsequentto the motion, the United States Court ofAppeals ruled in SikorskyAircraft Corp. v. UnitedStates, 773 F.3d 1315 (Fed. Cir. 2014) thatthis six-yearperiodwas not ajurisdictional requirement. 773 F.3d at 1321. The Board allowed the parties the opportunity for further briefing and oral argument onthe application ofSikorsky. Although KBRSI notes its continuing

9disagreement with the Federal Circuit's opinion, it now styles its motion as one for summaryjudgment. 

### It contends that it "has established that it is entitledtojudgmentthat the CDA statute oflimitations bars the government's monetary and nonmonetary claims
as a matter oflawbased on the undisputed material facts." (App. supp. br. at 4)

The Board analyzed the application ofthe Federal Circuit'sruling in Sikorsky in Kellogg, Brown & RootServices, Inc., ASBCANo. 58175, 15-1BCAii35,988. Notwithstanding KBRSI's disagreement with the Sikorsky decision, we are bound to follow the precedent established by our appellate court. Id. at 175,825 (citingE.L. Hamm & Associates, Inc., ASBCANo. 43972, 94-2 BCAii 26,724 at 132,940; and Reflectone, Inc., ASBCA No. 43081, 93-3 BCAii 25,966). Although the six-year accrual period stated in 41U.S.C.§7103 is not regarded asjurisdictional, it remains important as a deadline for filing a claim. "Failure to meet a statute oflimitations is an affirmative defense, for which the invoking party bears the burden ofproof." Kellogg, Brown & RootServices, 15-1 BCA ii 35,988 at 175,825 (citing FED. R. C1v. P. 8(c); Bridgestone/Firestone Research, Inc. v. Automobile Club de L 'Guestde la France, 245 F.3d 1359, 1361 (Fed. Cir. 2001)). Unlike
a motion to dismiss for lack of jurisdiction, in which the proponent forjurisdiction bears the burden ofproof, Sikorsky dictates that KBRSI bears thatburden as the party asserting untimeliness as an affirmative defense.

II. The Standard for SummaryJudgment
Summaryjudgmentis an efficient measure for resolving suits in which there
are no disputed material facts and the movant is entitled tojudgment as a matter of law. Mingus Constructors, Inc. v. UnitedStates, 812 F.2d 1387, 1390 (Fed. Cir. 1987); FED. R. CIV. P. 56. "Amovant for successful summaryjudgmentmust show, based solely upon the record nowbefore us and withoutbenefit ofahearing that there is sufficient and uncontroverted evidence to meet its evidentiary obligation as defined by law and precedent." Osborne Construction Co., ASBCANo. 55030, 09-1BCAii34,083 at 168,512. "Summaryjudgment is appropriate when, drawing all reasonable inferences in favor ofthe nonmovant, there is 'no genuine dispute as to any material fact and the movant is entitled tojudgment as a matter oflaw."' Spectrum Pharmaceuticals, Inc. v. SandozInc., 802 F.3d 1326, 1333 (Fed. Cir. 2015) (citing FED. R. CIV. P. 56(a); and Anderson v. LibertyLobby, Inc., 477 U.S. 242, 255 (1986)). While "wedetermine whether disputed facts are present, the Board will not at thisjuncture serve as arbiters to resolve controversies norweigh evidence or make determinations ofcredibility." Osborne, 09-1 BCAii 34,083 at 168,513 (citingLibertyLobby, 477 U.S. at 248).

IOIll The Positions of the Parties



### KBRSI argues various dates upon which it provided information that, it contends,
was adequate for the government's nonmonetary and monetary claims to have accrued. At one point, it states that the "government's nonmonetary claims

...accrued no later than July 29, 2004" 

### and the "government's monetary claims

...accrued nolater than February 6, 2006" (see, e.g., 

### app. supp. br. at 7 n.3 referencing app. mot., app'xA and app. reply br., app'xA). KBRSI also contends that 27 July 2006 is the "Latest date that both claims accrued by [the] government's admission" (app. reply br. at 7n.3). We separately evaluate the particular dates and the government's alleged "admission."

A. The Government'sAllegedAdmission thatBoth ClaimsAccrued "on 27July 2006"



### KBRSI contends that "the government already has conceded

### that the 2006 B&B rates proposal and review established accrual ofthe nonmonetary claim by providing visibility into KBR's allocation methods" (app. resp. at 5 n.10 (citing gov't opp'n at 13-14), ex. G-2 (Najera decl.) 

### i! 4; see also 

### app. resp. at 2-3, 13-14; app. supp. br. at 7-8). The alleged government admission or concession refers to the following statement, which is taken from the government's briefin its opposition to appellant's motion: "It

### was during the DCAA audit process ofthe FY 2006 B&B rate proposal that certain information from KBRprovided the visibility into the allocations for the pools and bases related tothe Risk Management insurance costs" (app. resp. at 5-6 n.10 (citing gov't opp'n at 13; see also 

### app. resp. at 14 n.15). Appellant explains the importance of27 July 2006 as the date by which "KBRSI had submitted, and the governmenthad in its possession, all the information necessary for the governmentto find CAS-noncompliance" (app. resp. at 9).

We are unpersuaded by appellant's reading ofthe government's statement as an admission or concession. As discussed below, the government maintains that KBRSI's 2006 B&B plan did not by itselfprovidethe necessary visibility into the contractor's allocation practices, and that subsequent communications between the parties was necessary to afford adequate insight into appellant's accounting practices (see, e.g., 

### gov't opp'n at 13-21). Appellant has not shown that it is entitledtojudgmentbased upon this isolated text, and the record is insufficiently developed to otherwise support such a finding.

11B. The Government'sNonmonetary Claim of 14August2012

The Appellant

KBRSI moves for summaryjudgment, arguing that the government's 14 August 2012 nonmonetary claim was untimely asserted because it accrued "no later than July 29, 2004" (app. supp. br. at 4, 7). Appellant cites a series ofexchanges between the parties to support its contention that it had disclosed its allocation practices to the government priorto 14 August 2006 (id. at 5-8). Documents relied upon by KBRSI include correspondence between the parties concerning FY 2006 and those dealing with prior year rate allocations. These include the government's 17 April 1998 draft CIPR report for FYs 1995 and 1996 (R4, tab 37); a 31 May 2002 submittal regarding the contractor's self-insurance program (R4, tab 38); a 27 February 2004 email transmitting FYs 2001-2003 B&B rate development support for worker's compensation, general liability, and auto liability self-insurance (R4, tab 40); an 8June 2004 email sendingthe government this information for FY 2004 (R4, tab 41); the 20 July 2004 submission of summary B&B rates for FYs 2003 and 2004 (R4, tab 42); a 23 November2005 KBRSI forward pricingrate proposal (R4, tab 45); a 24 February 2006 KBRSI CAS Board Disclosure Statement, Revision 2-2005 (R4, tab 46); a 20 April 2006 KBRSI B&B rate proposal (R4, tab 20); and correspondence of27 July 2006, when appellant supposedly made its last submission ofinformation oninsurance and related costs (R4, tab 53; app. mot., app'xA, Kerr decl. 

## i!il 24, 26-30, 34-41; app. reply br. at 12, 18-19, app'xA, Kerr supp. decl.

## i! 13; app. supp. br. at 5-8).

In addition to these, and critical to appellant's argument, are two government documents of29 July 2004, which KBRSI contends fixed the date upon which the government knew or shouldhave known that its nonmonetary claim had accrued. One is the "CONTRACTORINSURANCE PENSIONREVIEW [for] FYS 2001and2002" (R4, tab 43). According to KBRSI, this report "discussedthe rate development for KBRSI's primary insurance and the composition and rate development for KBRSI's
excess liability for Fiscal Years 2001 and 2002" (app. supp. br. at 5). The next document (R4, tab 44) is described by appellant as "amemorandum recommending forward pricing rates for Fiscal Years 2003 through 2008 for KBRSI, including burdens to be applied to payroll for KBRSI's insurance costs and related expenses" (app. supp. br. at 5-6; app. mot., app'xA; app. reply br., app'xA, Kerr decl. 

## i!il 32, 34). Based upon these "key disclosures" regarding the government's nonmonetary claim, appellant contends that it "has established that all ofthe events that fixed the alleged liability of KBRSI andpermitted assertion ofthe government's nonmonetary claim were known or should have beenknown no laterthanJuly 29, 2004." KBRSI maintains that "All ofthe events should have beenknown when they occurredbecause they were not concealed or inherently unknowable." (App. supp. br. at 7)

12

### The Government

The government opposes the motion 

### (see, e.g., gov't opp'n; gov'tresp.; gov't supp. br.). Itcontends that "tobe timely, the Government claim ofCAS noncompliance must not have accrued before August 14, 2006" (gov't opp'n at 8). The government maintains that:

KBRdoes not, and in fact cannot, pointto one particular document that contains the necessary level ofdetail ofits allocation practices that were disclosed to Governmentpersonnel such that the Governmentknew or should have known ofthe basis for the CAS noncompliance determination. Rather, KBR assembles a number of different documents that were prepared for a variety ofreasons by various sources but none ofwhich provide an adequate description ofthe allocation practices.

The government denies that the numerous "documents that, according to KBR, when taken together, reveal[ed] the allocation practices"bythat date. (Id. at 11) Thus "KBR's argument that the Governmentknew or should have known ofthe noncompliant allocation practices before 2006 fails" (gov't opp'n at 11-12; 

### see also Killgore decl. 

### iii! 4-14; Najera decl. 

### iii! 3-9; gov'tresp., ex. G-4 (Najera supp. decl.)

### passim).

The government supports its positionwith declarations from employees who were involvedwith the CAS determination. FormerDACO Karen Killgore has been with DCMA since February 2008, is currently corporate administrative contracting officer (CACO) "withthe Corporate and Divisional ACO Group, Civil Augmentation Program (CAP) Team, Houston, Texas" and issued the 14 August 2012 COFD (gov't opp'n,
ex. G-1 (Killgore decl.) 

### iii! 1-3). Killgore emphasizedherresponsibility as the DCMA contracting officerin determining whetherthe contractor was compliantwith CAS, and distinguishedthe work ofDCMA CIPRteams from that function. She stated that the role ofCIPRteams was "notto address CAS compliance" and that the teams "defer[red] to DCAA on allocation issues" 

### (id. 

### iii! 1-5; 

### see also R4, tab 37). Killgore contends that documents relied upon by KBRSI in its motion, as well as the contractor's invoices 

### (see, e.g., R4, tabs 38-40, 42-46), do not adequately advise the government ofthe CAS noncompliance that was the subject ofthe government's 14 August 2012 COFD (Killgore decl. 

### iii! 7-16).

The governmentprovides two declarations from JenniferNajera, a supervisory auditor for DCAA at its KBR Resident Office in Houston, Texas. She has been employedby the agency since 2007 and is familiar with the CAS noncompliances in question. (Najera decl. 

### iii! 1-2) The first declaration is dated 22 April 2014 

### (id.) and the second 2 October2014 (Najera supp. decl.). Najera explained that the "CAS 416 noncompliance exists within Halliburton's corporate structure at two points." The first

13"occurred when Halliburton estimated costs and allocated those costs to two wholly owned subsidiaries, Energy Systems Group ("ESG") and KBR, based upon the historical ratio ofinsurance recoveries." She said thatthe "noncompliance occurredbecause the allocation base consisting ofthe historical ratio ofinsurance recoveries was not based upon the factors used to determine the premium." (Najera supp. decl. 

### iJ 1) A "CAS 416 noncompliance occurred when KBR developed the [AL, GL, and EL] rates to allocate costs across business segments and final costs objectives using payroll dollars. The noncompliance exists becausethe costs allocated to the AL, GL, and EL pool do not have
a causal/beneficial relationship to payroll since the insurance costs benefit the corporation and not the employees." (Id. 

### ii 2)
Najera stated that "(t]he first instance in which DCAApersonnel notedpotential CAS 416 and 403 noncompliances for risk management insurance costs occurred during DCAA's examination ofKBR's [FY 2006 B&B] Rate Proposal datedApril 20, 2006" (Najera decl. 

### iJ 3 referencing R4, tab 20). Itwas not until afterward, when this correspondence was being reviewed, that "DCAAwas able to obtain information that provided visibility into the pools and bases ofthe B&B rates." Accordingto Najera, previous submissions "didnot include the level ofdetail necessary to determine CAS noncompliances related to [KBRSI's] risk management insurance practices." (Najera decl. 

### iJ 4; see also 

### iii! 5-8 referencing, inter alia, R4, tabs 41, 51-52, 54) She took exception to documents asserted by appellantto support its motion, and pointed out that it is the "allocation methodology, notthe percentage, that caused the CAS 416 noncompliance." Najera referenced CAS 4l 6-50(b)(2), and said that the "use ofpayroll alone does not make this a CAS 416 noncompliance"; rather, the noncompliance is due to the lack ofa "causal/beneficial relationship." She maintained that the parties' exchanges, including
an 8June 2004 email and its attachment (R4, tab 41), did not adequately describe "the factors used to determine the premium" which would have allowed the government to
assess whether "payroll is a factor used to determine the premium cost." (Najera supp. decl. 

### iii! 3-4 (citing R4, tab 41)). Najera said that it was not until the government received information following "KBR'sJuly 20, 2006 response to DCAA's inquiry that KBR disclosedthatthe purchased insurance premiums were splitbetween KBR and ESGbased upon the historical ratio ofinsurance recoveries [see R4, tab 51]." She cited "KBR's responses onApril 26, 2010 and May 4, 2010 regarding DCAA's questions about the insurance policies and coverages" in which appellant "providedthe necessary information to conclude thatpayroll was not a compliant/appropriate base." (Najera supp. decl. 

### iii! 5-6, attach. A (26 April 2010 email exchangebetween Daniel Hong (DCAA) and Deborah Stacey (Halliburton) with a copy to Charlie Kerr (KBR) 

### "RE: Questions CAS B&B") and attach. B ( 4 May 2010 email from Charlie Kerrto Daniel Hongregarding "DCAA Audit- 2006"))

The government also provided the 30 September 2014 declaration of Rasa 0. Rafferty, who is currently an insurance/pension specialistwith the CIPRteam in Carson, California (gov'tresp., ex. G-3 (Rafferty decl.)). Attachment A to Rafferty's

14declaration is "DCMA-INST 107," entitled "Contractor Insurance/Pension Review" and dated 6 March 2014, whichprovides agency guidance for performing CIPRs. At paragraph 1.1.4, itreferences DFARS 242.730l(a)(d), which states that "theACO is responsible for determining the allowability, reasonableness, and allocability of insurance/pension costs in Government contracts and for determining the need for a CIPR." (Rafferty decl., attach. A) Rafferty's declaration included a second attachment entitled "Contractor Insurance/Pension Review DataRequest" (id. attach. B), which she described as "the typical data request sent to a contractor" (id. 

### ii 4). Rafferty stated that she had "reviewedthe CIPR files for FYS 2001 and 2002" relevantto this appeal, but that "[d]ue to the length oftime that has elapsed since conducting the review in 2004, the backup data is no longer available" (id. 

### ii 6).
Rafferty "preparedthe Halliburton Kellogg Brown & Root CIPRReport for FYS 2001 and 2002, dated 29 July 2004," which appellant asserts as a key document evidencing the government's knowledge at that time ofthe CAS noncompliance that is the subject of the 14 August 2012 COFD. She stated thatparagraph 4 ofthe 29 July 2004 report "concludes by stating the CIPRteam did not have cost and pricing data to make a determination and therefore recommend[ed] disapproval ofthe costs." (Rafferty decl. 

### ii 5 referencing R4, tab 44) Rafferty saidthat DCAA's 22 September2006 Audit Report No. 3321-2006Kl9200006, Report onNoncompliance with CAS 416, "addresses FY 2006 allocation issues and the beneficial and causal relationship" and cites "CAS 4l6-40(b)" (id.iJ 7). "In contrast, the CIPRReport" of29 July 2004 (R4, tab 44) "addresses FYS 2001 and 2002 contingency fees, citing FAR3 l.205-7(a), and reserves not beingproperly discounted, citing CAS 416-50(a)(3)(ii)." She contended thatthe 22 September 2006 "DCAA audit report" covers "matters not reviewed or addressed by the CIPRteam." (Id. 

### ii 7)

In particular, the government states thatthe "twoDCMA CIPR [team] Reports (App. R4, tabs 37, 43)" cited by KBRSI demonstrate insufficient knowledge for the monetary claim to have accrued. The government asserts that a "CIPRteam comment that it did not find a CAS 416 noncompliance carries no weight in determining whether a claim accrued, because it is DCAAthat has the necessary expertise." The government observes thatthe "second CIPRteam report cited by KBRpertains to FAR28.308, Approval for Self-Insurance and, correctly, does not address CAS noncompliance." It says that "CAS administration is not one ofthe team's functions. DCAA is identified as the agency for CAS administration audit responsibilities and it is DCAA's advice that is relied upon by the CACO." (Gov't opp'n at 11-12; see also Rafferty decl.

## iii! 2-7; Najera supp. decl. 

## iii! 3-7)

15C. The Government'sMonetary Claim of20 October 2012

The Appellant

KBRSI also seeks summaryjudgmentwith respect to the government's 20 October 2012 monetary claim, which seeks to recover $8,838,619 in overcharges attributedto the CAS violation. Appellant contends that because undisputed material facts show thatthe governmentknew or should have known that its monetary claim accrued before 20 October 2006, this claim was untimely asserted in violation of 41 U.S.C. § 7103. KBRSI reasons that the monetary claim accrued the first time the government paid the contractor's invoice that included the controverted charges. It points to "Examples ofKBR's Disclosures and the Government's Review ofKBR's Allocation Practices Priorto October 29, 2006"to establish that appellant had furnished the government with information sufficient to know that the now-questioned insurance expenses were being allocated to payroll (app. mot., app'xA). Appellant maintains that, charged with this knowledge, "the government's claim for repayment accrued no later than the date ofits first claimed overpayment

- January 24, 2006" (app. mot. at 3). Charlie Kerr's declaration explained that "the first LOGCAP III invoice in 2006 charging the government for the insurance costs and related expenses was billed on January 16, 2006 andpaidby the government on January 24, 2006" (Kerr decl. , 45).

KBRSI subsequently asserted a date otherthan the 24 January 2006 for the accrual ofthis monetary claimthat was relied upon in its motion. It contends thatthe "government knew or should have known ofthe events establishing accrual ofits monetary claim as early as February 6, 2006" (app. resp. at 13). Although appellant reiterates this spare assertion (id. at 14 n.15), neitherthis submission norits motion (including that document's statement ofundisputed material facts (SUMF)) orany ofits priorbriefs furnish a reference to 6 February 2006 (see, e.g., app. mot. at 4-12; and app. resp. at 7-8). Informationwas discovered in a timeline provided in appellant's briefin response to oral argument, appendix C, "Accrual Based on the Government's Admissions." This schematic indicates that on "February 6, 2006,"the "Governmentpaid [the] first part of2006 insurance costs (KBRSI Rule 4 File, Tab 49)." (App. resp. br., app'x C) KBRSI does not reconcile this assertion with appellant's motion or its other submissions, which contend that the government's monetary claim accrued on 24 January 2006 (see, e.g., app. mot. at 3, SUMF at 9,, 18).

The Government

The government denies that its monetary claim of29 October 2012, which sought to recover $8,838,619 in overcharges attributed to KBRSI's CAS violations, was untimely. Itmaintains that it did not have sufficientknowledge ofthe CAS noncompliances to understand that the contractor's invoices containedthe resulting

16

### overcharges in time for the claim to have accrued more than six years before it was asserted. (Gov't opp'n at 7-8)

The government alleges a series ofevents that led to its having sufficient knowledge to assert the monetary claim. It 

### states that this claim could not have been made when it issued the 14 August 2012 "COFD asserting the CAS noncompliance," because the government needed more information from the contractor regarding the magnitude ofthe charges, and time to analyze that response. (Gov'topp'n at 7-8) It 

### states that "KBRhad an affirmative duty to submit a cost impactproposal," which the contractor acknowledged "in its November 1, 2011 letter to the DCMAACO in which it recommended that any impactbepostponed." According to the government, that took approximately another 18 months. (Gov't opp'n at 18) The government argues that although it "became aware ofpotential CAS noncompliances in 2010," it did not know of the cost impact until after DCMAreceived DCAA's ROM on 16 October 2012, which assessed the contractor's GDM of27 September 2012. The GDM proposal was part of appellant's response to the government's request for additional information regarding KBRSI's 20 April 2006 "FY2006 B&B rate proposal," whichthe government maintains lacked sufficient information for the claim to accrue. (Id. 

### at 18-19)

The governmentpoints to KBRSI's 7 May 2012 "Clarification ofallocation bases for KBR Risk ManagementExcess Program" as appellant's acknowledgementthat it was slow in furnishing the government with information aboutthe monetary impact ofthe overcharges. This letter, signed by Charlie Kerr, stated that "The Company recognizes that as part ofits communications and disclosure to your office regarding its compliance assessment ofits Risk Management process, it should have communicated any impacts to previously documented positions. This should have been spelled out in our November 1, 2011 disclosure. KBR regrets any inconvenience that may have resulted from this omission." (Gov'topp'n at 17 (citing R4, tab 10 at 102); see also 

### Najera supp. decl. 

### iii! 3-7, attachs. A, B)

ANALYSIS

It

### is KBRSI's burden as movant for summaryjudgment on the grounds ofan allegedly untimely claim to show by undisputed material facts that the government's nonmonetary claim accrued before 14 August 2006. Sikorsky, 

### 773 F.3d at 1321. "The evidence ofthe non-movant is to be believed, and alljustifiable inferences are to be drawn in [its] favor." LibertyLobby, 

### 477 U.S. at 255; see also 

### FED. R. CIV. P. 56(a). "Fixingthe date ofaccrual ofa claim requires first that there is a 'claim' as defined in the Contract Disputes Act and associated regulation." KelloggBrown & RootServices, Inc. v. Murphy, 

### No. 2015-1148, slip. op. at 7 (Fed. Cir. May 18, 2016). As a claim accrues "when all events, that fix the alleged liability ofeitherthe Government orthe contractor and permit assertion ofthe claim, were known or should have been known," our inquiry into the

17date ofaccrual begins with ascertaining the "legalbasis ofthe particular claim." 

### Gray Personnel, Inc., ASBCANo. 54652, 06-2 BCAif 33,378 at 165,475. We assess thepoint at which the CDA's six-year statute oflimitations in 41 U.S.C. 

### § 7103 begins to run using the '"shouldhave been known' test ofclaim accrual which 'has a reasonableness component [based] upon what facts were reasonably knowable to the claimant.'" 

### Raytheon Company, ASBCANo. 58849, 15-1 BCAif 36,000 at 175,868 (quoting

### Laguna Construction Company, ASBCANo. 58569, 14-1BCAif35,618 at 174,459). "Summaryjudgment is not normally appropriate where reasonableness and subjective knowledge are facts at issue." 

### Raytheon, 15-1 BCAif 36,000 at 175,868 (citing

### MICICCSJoint Venture, ASBCA No. 58242, 14-1 BCAif 35,612 at 174,436; 

### The Boeing Co., ASBCA No. 54853, 12-1 BCA if 35,054 at 172,198).

We address first thatportion ofthe contractor's motion pertainingto the government's nonmonetary claim. We find that KBRSI failed to showthat the documents it relies upon, includingthose in the Rule 4 file and others furnished with its briefs and motion, establish undisputed material facts sufficient for the Boardto conclude (without more) that the government's 14 August 2012 claimwas untimely. Atthis stage, the evidentiary record is not sufficiently developed to putthese documents in context or explain their importance. The government's opposition, including supporting declarations, adequately controverts appellant's view ofthe evidence upon which its motion is founded 

### (see, e.g., Najera supp. decl. 

### iii! 5-6, attachs. A, B; Rafferty decl. if7). We do not on summaryjudgment "resolve factual disputes, but.

..ascertain whether material disputes offact- triable issues

- are present." 

### ESCgov, Inc., ASBCA No. 58852, 15-1BCAif36,021 at 175,932 (citing 

### ConnorBros. Construction Co., ASBCA No. 54109, 04-2 BCAif 32,784 at 162,143, 

### aff'd, ConnorBros. Construction Co. v. Geren, 550 F.3d 1368 (Fed. Cir. 2008) (quoting

### John C 

### Grimberg Co., ASBCA No. 51693, 99-2 BCAif 30,572 at 150,969)). Drawing alljustifiable inferences in favor of the government and making the requisite reasonableness determination, we find that triable issues are present and so deny appellant's motion for summaryjudgmenton the issue ofwhetherthe government's nonmonetary claim of 14 August 2012 was timely.

Nordoes KBRSI succeed in establishing undisputed material facts regarding the government's monetary claim of29 October 2012 to warrant favorablejudgment. Despitethe panoply ofdocuments cited in its motion, whethertaken together or singly, these fall short ofmeeting KBRSI's burden ofproof. Among otherthings, the contractor does not satisfactorily explain its 2010-2012 correspondence seeking additional time to furnish information and apologizing for any inconvenience causedthe government 

### (see, e.g., R4, tabs 10, 15, 17, 22; Najera supp. decl., attachs. A, B). Nordoes it adequately address the CO's admonition in the 14 August 2012 COFD that KBRmust furnish a GDM orthatthe governmentwould beginunilaterally withholding money (R4, tab 14), andthe government's argument that it couldnothave known the amount ofits monetary claim until itreceived KBRSI's GDM on 27 September 2012 (R4, tab 17). We find the currentrecord to be inadequate to sustain a finding that KBRSI has established thatthe

18government knew or should have known ofthe contractor's allocation practices for the subject contracts. As triable issues again remain, we deny thatportion ofKBRSI's motion pertaining to the government's monetary claim of 12 October 2012.

CONCLUSION

We deny KBRSI's motion for summaryjudgmentwith respectto the government's 14 April 2012 nonmonetary claim and its 29 October 2012 monetary claim.

Dated: 16 June 2016

I concur

# ~~;r44-- Administrative Judge Acting Chairman Armed Services Board ofContractAppeals Administrative Judge Armed Services Board ofContractAppeals

I concur

RICHARD SHACKLEFORD Administrative Judge Vice Chairman Armed Services Board ofContract Appeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCA Nos. 58518, 59005, Appeals of Kellogg Brown & Root Services, Inc., rendered in conformance with the Board's Charter.

Dated:

19 JEFFREY D. GARDIN Recorder, Armed Services Board ofContract Appeals