ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of-- Kellogg Brown & Root Services, Inc. Under ContractNo. DAAA09-02-D-0007 APPEARANCES FORTHE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: ) ) ) ) ) ASBCA No. 58175

Jason N. Workmaster, Esq. Raymond B. Biagini, Esq.

Covington & Burling LLP Washington, DC Arthur M. Taylor, Esq.

DCMA Deputy ChiefTrial Attorney Carol Matsunaga, Esq.

Senior Trial Attorney Defense Contract Management Agency Carson, CA OPINION BYADMINISTRATIVE JUDGE SCOTT ONAPPELLANT'S MOTIONTO AMEND Kellogg Brown & Root Services, Inc. (KBR) has filed "Appellant's Motion to Amend the Board'sMarch 15, 2018 Judgment," referring to the Board'sMarch 15, 2018 post-hearing decision in this appeal, 

### KelloggBrown & 

### RootServices, Inc., ASBCANo. 58175, 18-1 BCA i1 37,006. KBR asks the Boardto amend its decision that "KBRis to remit $11,233,117 to the government, plus interest," 

### id. at 180,233, to state that "while the Board has found that the [g]overnment is entitled to [that amount plus interest], that amount is not due and owing because it is offsetby a larger amount that the [g]ovemment owes KBR" (mot. at 2). The Defense Contract Management Agency (DCMA) opposes KBR's motion. The Parties' Contentions KBRalleges that its motion is akin to one to correct ajudgmentunder FED. R. CIV. P. 60, Relieffrom a Judgment or Order. It does not consider its motion to be a request for reconsideration. KBR asserts that, although the Board ruled that KBR "mustreimburse the government" for the costs KBRincurred due to its failure to follow government direction to reduce a site headcount under its contractto provide dining facility services in Iraq, 18-1BCAi137,006 at 180,233, the government otherwise owes KBR over $150 million in incurred costs. KBR states that it understands thatthe government does not dispute its entitlementto at least $33 million. Therefore, according to KBR, the Board should amend its decision to account for the offset amount said to be due to KBR. KBR

### submits the declaration ofScott Booth, a project manager, in support ofits financial claims. DCMA alleges that there is no legal or factual support in the record for KBR's proposed amendment, citing Board Rule 19(a), which provides that "[d]ecisions ofthe Board will be made solely upon the record." DCMA asserts that Mr. Booth's declaration is notpart ofthe record and is not supported by it or any other documentation. DCMA contends that KBR should follow the normal contract invoicing process and the government will make determinations on cost allowability. DCMA appends declarations from the procurement contracting officer (PCO) and the administrative contracting officer that they are not familiar with the $33 million amount to which KBR alleges the government does not dispute entitlement. The PCO notes that KBRhas submitted a proposal for contract closeoutthat includes $40 million in legal costs but that the government has not yet made allowability determinations. He states that any undisputed amounts owed to KBR should be paid through the Defense Finance and Accounting Service and the routine invoicing process. KBRreplies essentially that, regardless ofthe precise amount the government owes KBR, it exceeds the amountthe Boardruled KBR owes the government. KBR appends a supplemental declaration by Mr. Booththatthe $33 million in costs he mentioned in his original declaration are included in the $40 million proposal for contract closeout to which the PCO referred in his declaration. Mr. Booth declares, among otherthings, that the Defense ContractAuditAgency has audited abouthalfofthe costs and found them to be allowable and that KBRis confidentthat the government will not contest at least the amount that is at issue here. In its sur-reply DCMA continues to oppose KBR's motion to amend and disputes that FED. R. CIV. P. 60 applies. Discussion The Board does not have a rule such as FED. R. CIV. P. 60. The Board is not bound by the Federal Rules, but we may look to them for guidance, particularly when ourrules do not directly address a matter. TTF, L.L.C., ASBCANo. 58494, 13 BCA

## ,r 35,343 at 173,463; Thai Hai, ASBCA No. 53375, 02-2 BCA

## ,r 31,971 at 157,920, aff'd, Thai Hai v. Brownlee, 82 F. App'x 226 (Fed. Cir. 2003) (unpublished). FED. R. CIV. P. 60(a) pertains to corrections to ajudgmentbased upon clerical mistakes, oversights and omissions, which did not occur here. Rule 60(b) allows for relief from a finaljudgmentbased upon: (1) "mistake, inadvertence, surprise or excusable neglect"; (2) "newly discovered evidence"; (3) "fraud

..., misrepresentation, or misconduct by an opposing party"; (4) a voidjudgment; (5) ajudgmentthat "has been satisfied, released or discharged"; and (6) "any otherreason thatjustifies relief." KBRrelies in particular upon Rule 60(b)(5), citing it for the proposition that "one ofthe primary purposes ofa motion to 2amend [is] to allow an adjudicative body to account for the satisfaction ofajudgment after the decision has been made and, thu·s, the record closed" (app. reply at 3 n.2). As quoted above, BoardRule 19(a)provides thatthe Board's decisions are to be made upon the record alone. DCMA is correct thatthe amendment KBR seeks is not based upon any matter ofrecord. Moreover, there is noprobative, undisputed evidence that the Board'sjudgmenthas been satisfied. The Board finds nothing in FED. R. CIV. P. 60 to support KBR's motion. Thus, there is no basis for the Boardto amend its decision.

The Board denies KBR's motion. Dated: August 28, 2018

I concur

RICHARD SHACKLEFORD Administrative Judge Acting Chairman Armed Services Board ofContract Appeals DECISION

ministrative Judge Armed Services Board ofContractAppeals I concur

OWEN C. WILSON Administrative Judge Vice Chairman Armed Services Board ofContractAppeals I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCANo. 58175, Appeal ofKellogg Brown & Root Services, Inc., rendered in conformance with the Board's Charter. Dated:

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

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