ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of--

Kellogg Brown & Root Services, Inc. 

Under Contract No. DAAA09-02-D-0007 

APPEARANCES FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

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ASBCA No. 58175 

Jason N. Workmaster, Esq. 

Raymond B. Biagini, Esq. 

Covington & Burling LLP 

Washington, DC 

Arthur M. Taylor, Esq. 

DCMA Deputy Chief Trial Attorney 

Carol Matsunaga, Esq. 

Senior Trial Attorney 

Defense Contract Management Agency 

Carson, CA 

OPINION BY ADMINISTRATIVE JUDGE SCOTT 

ON APPELLANT'S MOTION TO AMEND 

Kellogg Brown & Root Services, Inc. (KBR) has filed "Appellant's Motion to Amend 

the Board's March 15, 2018 Judgment," referring to the Board's March 15, 2018 post-hearing 

decision in this appeal, Kellogg Brown & Root Services, Inc., ASBCA No. 58175, 18-1 BCA 

i1 37,006. KBR asks the Board to amend its decision that "KBR is 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 offset by 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 

KBR alleges that its motion is akin to one to correct a judgment under FED. R. CIV. 

P. 60, Relief from 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 "must reimburse 

the government" for the costs KBR incurred due to its failure to follow government 

direction to reduce a site headcount under its contract to 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 that the government does not 

dispute its entitlement to at least $3 3 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 of Scott Booth, a project manager, in support of its 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 of the 

Board will be made solely upon the record." DCMA asserts that Mr. Booth's declaration is 

not part of the 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 KBR has submitted a 

proposal for contract closeout that 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. 

KBR replies essentially that, regardless of the precise amount the government owes 

KBR, it exceeds the amount the Board ruled KBR owes the government. KBR appends a 

supplemental declaration by Mr. Booth that the $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 other things, that the 

Defense Contract Audit Agency has audited about half of the costs and found them to be 

allowable and that KBR is confident that 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 our rules do 

not directly address a matter. TTF, L.L.C., ASBCA No. 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 a judgment based upon clerical 

mistakes, oversights and omissions, which did not occur here. Rule 60(b) allows for relief 

from a final judgment based upon: ( 1) "mistake, inadvertence, surprise or excusable 

neglect"; (2) "newly discovered evidence"; (3) "fraud ... , misrepresentation, or misconduct by 

an opposing party"; (4) a void judgment; (5) a judgment that "has been satisfied, released or 

discharged"; and (6) "any other reason that justifies relief." KBR relies in particular upon 

Rule 60(b )( 5), citing it for the proposition that "one of the primary purposes of a motion to 

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amend [is] to allow an adjudicative body to account for the satisfaction of a judgment after 

the decision has been made and, thu·s, the record closed" (app. reply at 3 n.2). 

As quoted above, Board Rule 19(a) provides that the Board's decisions are to be 

made upon the record alone. DCMA is correct that the amendment KBR seeks is not based 

upon any matter of record. Moreover, there is no probative, undisputed evidence that the 

Board's judgment has been satisfied. The Board finds nothing in FED. R. CIV. P. 60 to 

support KBR's motion. Thus, there is no basis for the Board to amend its decision. 

The Board denies KBR's motion. 

Dated: August 28, 2018 

I concur 

RICHARD SHACKLEFORD 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

DECISION 

ministrative Judge 

Armed Services Board 

of Contract Appeals 

I concur 

OWEN C. WILSON 

Administrative Judge 

Vice Chairman 

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 No. 58175, Appeal of Kellogg Brown & Root 

Services, Inc., rendered in conformance with the Board's Charter. 

Dated: 

3 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals