United States Court of Appeals 

for the Federal Circuit ______________________ 

KELLOGG BROWN & ROOT SERVICES, INC.,

Appellant

v.

PATRICK J. MURPHY, 

ACTING SECRETARY OF THE ARMY,

Appellee

______________________ 

2015-1148

______________________ 

Appeal from the Armed Services Board of Contract 

Appeals in No. 58492, Administrative Judge Alexander 

Younger, Administrative Judge Mark N. Stempler, Administrative Judge Richard Shackleford.

______________________ 

Decided: May 18, 2016

______________________ 

 THOMAS PARKER MCLISH, Akin, Gump, Strauss, 

Hauer & Feld, LLP, Washington, DC, argued for appellant. Also represented by SCOTT MICHAEL HEIMBERG; 

TIRZAH S. LOLLAR, Vinson & Elkins LLP, Washington, 

DC; JOHN M. FAUST, Law Office of John M. Faust, PLLC, 

Washington, DC.

 ELLEN MARY LYNCH, Commercial Litigation Branch, 

Civil Division, United States Department of Justice 

Washington, DC, argued for appellee. Also represented by
2 KELLOGG BROWN & ROOT SERVICES v. ARMY

BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., BRYANT 

G. SNEE. 

______________________ 

Before NEWMAN, O’MALLEY, and CHEN, Circuit Judges.

NEWMAN, Circuit Judge.

The only issue on this appeal is whether the six-year 

statute of limitations of the Contract Disputes Act had 

run for this claim. The claim was filed by Kellogg Brown

& Root Services, Inc. (KBR) for costs incurred by KBR for 

work done by its subcontractor in performing a contract 

with the Army to construct dining facilities and to provide 

meal and related services for troops in Iraq. On the 

Army’s motion, the Armed Services Board of Contract 

Appeals (ASBCA or Board) dismissed KBR’s claim for 

lack of subject matter jurisdiction, holding that the period 

of limitations had run before KBR filed this claim.1 The 

claim was filed on May 2, 2012; thus, the critical date of 

accrual for limitations purposes is May 2, 2006.

On review of the premises and the applicable law, we

conclude that the Board erred in law and on the application of law to the undisputed facts. We conclude that the 

KBR claim had not accrued, for limitation purposes,

before May 2, 2006. The Board’s dismissal is reversed; we

remand for determination of the merits of the claim. 

BACKGROUND

In summary: on December 14, 2001, the Army and 

KBR entered into a cost-plus-award-fee contract under 

the Logistics Civil Augmentation Program. KBR subcon-

 

1 Kellogg Brown & Root Servs., Inc. v. Dep’t of the 

Army, ASBCA No. 58492, 14-1 BCA ¶35,713 (“Board 

Op.”).
KELLOGG BROWN & ROOT SERVICES v. ARMY 3

tracted with a joint venture between The Kuwait Company for Process Plant Construction & Contracting K.S.C. 

and Morris Corporation (AUST) PTY Ltd. (KCPC/Morris), 

to implement certain work release orders for construction 

of dining facilities and provision of food services at two 

locations in Iraq. On July 31, 2003, KBR terminated the 

subcontract for “fail[ure] to bring conditions to full contract performance as of 31 July, 2003,” as required by the 

subcontract. Army Br. at 4. KCPC/Morris disputed the 

termination, and, at KBR’s request, also continued performance until transition to a new subcontractor on 

September 12, 2003. 

The ensuing determination of reimbursable costs and 

termination conditions included a suit filed in 2004 by

KCPC/Morris against KBR in the United States District 

Court for the Eastern District of Virginia, in which 

KCPC/Morris stated (and KBR disputed) that an oral 

settlement had been reached and sought its enforcement. 

On January 24, 2005, KBR and KCPC/Morris entered into 

a written agreement, described by the Board as follows: 

[T]he parties divided KCPC/Morris’ costs into two 

groups: (a) the “Settlement Amount” of 

$17,400,000; and (b) KCPC/Morris’ costs incurred 

and profit related to its performance under the 

Master Agreement and the termination of the 

Work Releases . . . including overhead, G&A, profit and certain costs incurred in preparing requests 

for payment to the U.S. Government.

Board Op. at 3. This agreement also converted the default termination into a termination for convenience. Id. 

The group (a) “Settlement Amount” of $17,400,000 

was paid, and is not at issue. This CDA action concerns 

only the group (b) component. For the group (b) costs, the 

agreement stated that KBR and KCPC/Morris would

cooperate “to prepare a well-supported invoice or invoices 

to the U.S. Government,” the agreement also stating that 
4 KELLOGG BROWN & ROOT SERVICES v. ARMY

“[i]n no event shall KBR submit an invoice to the Government for any portion of the JOINT VENTURE’s costs 

that KBR does not believe is supportable.” 2005 Settlement Agreement at 4. 

On August 26, 2006, KCPC/Morris submitted to KBR 

a certified claim for the “outstanding payments, costs and 

lost profit associated with the termination for convenience 

by [KBR] of the [] contract.” Army Br. at 5. On November 

3, 2006, KBR forwarded KCPC/Morris’ claim to the Army, 

with a letter stating that KBR “does not certify or comment to the validity of these costs and does not have any 

other supporting documentation for validation.” Letter 

from Senior Manager, Contracts, KBR, to Chief, LOGCAP 

Branch, Department of the Army (Nov. 3, 2006) (“KBR 

Letter”). 

The Army responded to KBR on May 30, 2007, stating 

that “it is KBR’s management responsibility to negotiate 

or discuss claims with its subcontractors and the Army 

does not comment in advance as to whether a claim or 

certain costs are appropriate. Therefore, the Army will 

not meet with, or correspond directly with KBR’s subcontractors.” See Board Op. at 5 (quoting Army Sustainment 

Command Letter to KBR (May 30, 2007)). The Army 

refused to consider the submitted information, and directed KBR to “settle a claim by its sub with the sub, then 

bill the government.” E-mail from Chief, Contracting 

Division, Logistics Civil Augmentation Program, Army 

Sustainment Command, to Senior Manager, Contracts, 

Kellogg Brown and Root, “RE: Request for additional 

information regarding draft settlement” (July 19, 2007) 

(“Army Email”). 

On October 10, 2007, KBR “sponsored” the 

KCPC/Morris claim, followed by certification of the claim 

by letter dated January 10, 2008. On September 8, 2010, 

KBR withdrew the claim, stating that “[u]pon further 

review of the data provided by KCPC/Morris, KBR has 
KELLOGG BROWN & ROOT SERVICES v. ARMY 5

determined that this constitutes a business dispute 

between KBR and KCPC/Morris and should be resolved in 

accordance with KBR’s subcontract with KCPC/Morris.” 

Letter from Senior Manager, Contracts, Kellogg Brown 

and Root, to Army Contracting Command, “Subject: 

DAAA09-02-D-0007: Subcontractor Claim KCPC/Morris.” 

The record before us does not provide details, but KBR 

states that the asserted costs were eventually reduced by 

about $2.1 million. KBR Br. 20. 

On August 4, 2011, KCPC/Morris filed suit against 

KBR in the United States District Court for the Eastern 

District of Virginia, stating in its complaint that “KBR 

allowed [KCPC/Morris’ claim] to languish with the Government, . . . and then inexplicably withdrew the entire 

claim in September 2010 without consulting 

KCPC/Morris. . . . KBR has failed to submit and pursue 

the portions of the claim it concedes are well supported . . . .” Compl. at 2, Kuwait Co. for Process Plant Const. 

& Contr. v. Kellogg, Brown & Root Servs., Inc., 1:11-cv824-CMH/TRJ, (E.D. Va. August 4, 2011). This suit was 

withdrawn after KBR and KCPC/Morris entered into an 

agreement dated February 17, 2012, for payment to 

KCPC/Morris of $10,464,493, which the Board summarized as for “construction costs, equipment, expenses such 

as medical care and travel, meals served, overhead and 

G&A, profit, and termination settlement costs.” Board 

Op. at 4–5. On May 2, 2012, KBR filed a certified claim 

with the Army for this amount. The contracting officer 

did not act on the claim, thereby placing it in “deemed 

denied” status. KBR then appealed to the Board.

The Army moved to dismiss, stating that the six-year 

CDA statute of limitations had run. The Board granted 

the motion, finding alternative dates for the accrual of the 

claim, both dates before the critical limitations date of 

May 2, 2006. The Board found, first, that the claim 

accrued on September 12, 2003, the date when 

KCPC/Morris ended its work under the subcontract; and 
6 KELLOGG BROWN & ROOT SERVICES v. ARMY

alternatively on January 24, 2005, when KBR and 

KCPC/Morris agreed to cooperate to present an invoice to 

the Army for costs above the “Settlement Amount” of 

$17.4 million. The Board held that there was no basis for 

equitable tolling of the limitations period. Board Op. at 

10–11 (“With a record that reflects such lengthy time gaps 

as this . . . , we cannot say that KBR has actively pursued 

its remedies. In addition, [the record] does not support 

any conclusion of trickery or other misconduct.”) (internal 

quotations marks omitted). This appeal followed. 

DISCUSSION

The limitations period is determined in accordance 

with the Contract Disputes Act (CDA), which provides 

that a claim “shall be submitted within 6 years after the 

accrual of the claim.” 41 U.S.C. § 7103(a)(4)(A). We start 

with the Board’s ruling that the claim accrued on the date 

the subcontractor ended its work. 

“Accrual” When Subcontractor Work Ended On 

September 12, 2003

The FAR defines “accrual” of a contract claim as:

the date when all events, that fix the alleged liability of either the Government or the contractor 

and permit assertion of the claim, were known or 

should have been known. For liability to be fixed, 

some injury must have occurred. However, monetary damages need not have been incurred.

48 C.F.R. § 33.201. Precedent elaborates that whether 

and when a CDA claim accrued is determined in accordance with the FAR, the conditions of the contract, and the 

facts of the particular case. Parsons Global Servs. v. 

McHugh, 677 F.3d 1166, 1170 (Fed. Cir. 2012) (“we evaluate whether a particular request for payment amounts to 

a claim based on the FAR implementing the CDA, the 

language of the contract in dispute, and the facts of each 

case.”); James M. Ellett Constr. Co. v. United States, 93 
KELLOGG BROWN & ROOT SERVICES v. ARMY 7

F.3d 1537, 1542 (Fed. Cir. 1996) (the existence of a CDA 

claim “is based on the FAR definition of a claim, the 

contract language, and the facts of the case”); Reflectone, 

Inc. v. Dalton, 60 F.3d 1572, 1575 (Fed. Cir. 1995) (en 

banc) (“we must assess whether a particular demand for 

payment constitutes a claim, based on the FAR implementing the CDA, the language of the contract in dispute, 

and the facts of the case.”).

The Board reasoned that “liability was fixed” on September 12, 2003, because the claim was for the “alleged 

entitlement to the net costs of performance of the terminated KCPC/Morris subcontract, including costs for 

construction of sites C-1 and C-2, meals served, overhead, 

G&A and profit (statement 19).” Board Op. at 7. KBR 

responds that until the amount of payment to be requested of the Army was determined, the claim had not come 

into existence and thus could not accrue. KBR points to 

the Army’s requirement that KBR resolve all subcontractor issues in order to “permit assertion of the claim.” FAR 

§ 33.201. “Claim” is defined as:

“Claim” means a written demand or written assertion by one of the contracting parties seeking, 

as a matter of right, the payment of money in a 

sum certain, the adjustment or interpretation of 

contract terms, or other relief arising under or relating to the contract. However, a written demand or written assertion by the contractor 

seeking the payment of money exceeding $100,000 

is not a claim under 41 U.S.C. chapter 71, Contract Disputes, until certified as required by the 

statute. . . .

48 C.F.R. § 2.101; see also id. § 52.233-1(c)(same).

Fixing the date of accrual of a claim requires first that 

there is a “claim” as defined in the Contract Disputes Act

and associated Regulations. KBR states that “a sum 

certain” could not have been demanded or asserted on 
8 KELLOGG BROWN & ROOT SERVICES v. ARMY

September 12, 2003, because the reimbursable costs and 

profit entitlements were not then known, and in view of 

disputes including termination conditions, could not 

reasonably have been known. KBR states that until 

KCPC/Morris sent KBR its documented and certified 

claim on August 26, 2006 (after the critical date of May 2, 

2006), there was not a basis for determining the “sum 

certain” that is required for a CDA claim. KBR points out 

that the Army refused to consider the KCPC/Morris 

certified claim when forwarded by KBR, and that the 

Army required KBR to resolve all issues with the subcontractor: “KBR is required to settle a claim with the subcontractor, then bill the government.” See Army Email. 

The Army does not state that the amount of the claim 

was reasonably known in 2003 or 2005; the Army’s argument is that liability was “fixed” by KBR’s cost-reimbursal 

contract with the Army, although the amount of the 

liability was not established. Army Br. at 12–15 (“Even 

though the exact amount of money that KBR owed 

KCPC/Morris had not yet been established . . .[,] KBR’s 

liability to KCPC/Morris was fixed because KBR knew 

that it owed KCPC/Morris money. . . . When 

KCPC/Morris’ claim accrued against KBR, so too did 

KBR’s claim accrue against the government.”). However, 

by FAR definition, a “claim” for “the payment of money” 

does not “accrue” until the amount of the claim, “a sum 

certain,” FAR § 2.101, is “known or should have been 

known,” id. § 33.201.

In Parsons Global, this court observed that determination of whether a claim accrued is based on the particular circumstances. 677 F.3d at 1170 (“we evaluate 

whether a particular request for payment amounts to a 

claim based on . . . the facts of each case.”). KBR states 

that it did not have sufficient information to request a 

sum certain until KCPC/Morris first presented its claim 

to KBR on August 26, 2006, after the critical date. The 
KELLOGG BROWN & ROOT SERVICES v. ARMY 9

Board did not find otherwise, and the Army does not 

argue otherwise.

Instead, the Board adopted the theory, presented by 

the Army, that the payment of the remaining subcontractor costs was a “non-routine” request for payment, and 

thus accrued as of the date the subcontractor ended its

work, on September 12, 2003. Reflectone, explains the 

distinction between routine and non-routine requests for 

payment in CDA matters: “A routine request for payment 

is made under the contract, not outside it,” 60 F.3d. at 

1575, while a non-routine request seeks “compensation 

because of unforeseen or unintended circumstances,” id.

at 1577. The Board held that any termination of a subcontract is unforeseen or unintended, and therefore 

produces the immediate accrual of any compensation 

owed. Board Op. at 10. 

The Board’s holding is a misapplication of so-called 

“non-routine” requests. The origin of this rule, as explained in James M. Ellett, 93 F.3d at 1543, is to permit a 

contractor that has been injured by “some unexpected or 

unforeseen action on the government’s part that ties it to 

the demanded costs,” in the words of Parsons Global, 677 

F.3d at 1171, to seek immediate payment of any damages 

flowing from the government’s action. Termination of a 

subcontractor by the prime contractor is not a per se

“unexpected or unforeseen government action” that permits and requires an immediate claim by the prime 

contractor. The Army does not argue otherwise.

Whether a request for payment is deemed routine or 

non-routine in the context of accrual of a CDA claim 

against the government is “dependent on the circumstances in which the requested costs arose.” Id. at 1170. 

KBR states that the group (b) costs for which payment is 

requested are the routine costs of performance and termination, and did not arise from unexpected government 
10 KELLOGG BROWN & ROOT SERVICES v. ARMY

action, but from subcontractor inadequacy in performance 

of its obligations under the subcontract.

The Army argues that KBR’s November 3, 2006 letter 

to the Army (after the critical date) was a “non-routine” 

request for payment, for this letter states that KBR “does 

not certify or comment to the validity of these costs and 

does not have any other supporting documentation for 

validation.” See KBR Letter. However, the Army refused 

to accept this letter as a “claim,” either routine or nonroutine. 

KBR states that whether its November 3, 2006, letter 

forwarding the KCPC/Morris claim is viewed as a “routine” or “non-routine” request is irrelevant to the limitations issue, for it occurred after the critical date of May 2, 

2006. We agree that this letter did not retrospectively 

convert the termination date of September 12, 2003, into 

the “accrual” of a “claim” that was not even arguably 

presented until after the critical limitations date.

In other, related situations, precedent illustrates that 

the limitations period does not begin to run if a claim 

cannot be filed because mandatory pre-claim procedures 

have not been completed. See Crown Coat Front Co. v. 

United States, 386 U.S. 503, 510-12 (1967) (pre-CDA case, 

finding that the government contractor’s claim “first 

accrued . . . upon the completion of the administrative 

proceedings contemplated and required by the provisions 

of the contract”). Here, the Army required that KBR 

resolve disputed costs with the subcontractor before KBR 

could present a claim for reimbursement of those costs. 

See Bay Area Laundry and Dry Cleaning Pension Trust 

Fund v. Ferbar Corp. of Calf., Inc., 522 U.S. 192, 200–01 

(1997) (rejecting as “inconsistent with basic limitations 

principles” the position that a limitations period can 

commence when the claimant’s suit would be premature 

because required pre-suit procedures had not taken 

place).
KELLOGG BROWN & ROOT SERVICES v. ARMY 11

The Army also states that the Severin Doctrine requires that this claim accrued on September 12, 2003. 

That is not an apt application of Severin v. United States, 

99 Ct. Cl. 435 (1943), where the court held that “if plaintiffs had proved that they, in performance of their contract with the government[,] become liable to their 

subcontractor for damages which the latter suffered, that 

liability, though not yet satisfied by payment, might well 

constitute actual damages to plaintiffs and sustain their 

suit.” Id. at 443. The Army states that “Severin describes 

precisely the situation that we have here—KBR became 

liable to its subcontractor for damages that the subcontractor suffered because of KBR’s default termination 

decision.” Army Br. 13.

The Army argues, “When KCPC/Morris’ claim accrued 

against KBR, so too did KBR’s claim accrue against the 

government.” Id. at 14. Severin does not so hold. The 

prime contractor may indeed be liable for damages that 

the prime inflicts on the subcontractor. However, Severin

does not hold that the date of “accrual” of the prime’s 

claim against the government is the date of termination of 

the subcontractor. Accrual in accordance with FAR 

§ 33.201 does not occur until KBR requests, or reasonably 

could have requested, a sum certain from the government. 

As the Army repeatedly told KBR here, it would not 

consider any of KBR’s submissions until after resolution 

of the subcontractor issues. 

The Army also argues that the government’s exposure 

in “pass-through” suits for subcontractor claims is limited 

to the amount of the prime contractor’s liability for the 

subcontractor’s costs. Accepting this position for this 

case, it does not follow that KBR’s claim against the 

government accrued before the subcontractor submitted 

its certified claim to KBR. Severin is concerned with 

liability among government, contractor, and subcontractor, see 99 Ct. Cl. at 443, not with dates of “accrual” of 

“claims” as defined by the FAR. And the Severin Doctrine 
12 KELLOGG BROWN & ROOT SERVICES v. ARMY

is directed to liability resulting from government action 

harming the subcontractor.

KBR criticizes the Army’s position that prime contractors have ripe CDA claims against the government at the 

moment that dispute arises with a subcontractor, even if 

the government is not involved in the dispute; even if, as 

here, the Army required KBR to resolve its subcontractor 

issues before the Army would consider the claim. KBR 

states that the Board’s ruling and the Army’s position 

would require cost-reimbursement contractors to request 

payment of subcontractor costs while those costs are 

under dispute, lest the prime contractor lose the right to 

recover those costs. KBR correctly observes that the CDA 

does not require the filing of protective claims related to 

subcontractors while those claims are being resolved

between the prime and sub. 

We conclude that the Board erred in holding that because subcontract activity by KCPC/Morris ended on 

September 12, 2003, the KBR claim for group (b) costs 

accrued on that date.

Alternate Accrual in January 2005

The Board held alternatively that KBR’s claim accrued when, “in January 2005, KBR had sufficient actual 

knowledge to enter into a written settlement agreement 

segregating subcontract costs into a ‘Settlement Amount’ 

and other costs above that amount.” Board Op. at 8.

This appeal relates only to the “other costs” above the 

Settlement Amount. The January 2005 agreement also 

established conversion from termination for default to 

termination for convenience, adding the need for KBR and 

the subcontractor to resolve the issue of lost profits. 

Indeed, the Army does not argue that “a sum certain” was 

known at the time the January 2005 agreement was 

entered. 
KELLOGG BROWN & ROOT SERVICES v. ARMY 13

In accordance with the FAR, KBR’s claim for the “other costs” did not alternatively accrue when KBR and the 

subcontractor agreed to resolve these costs and cooperate 

to present a claim when the costs were resolved. We 

conclude that the Board erred in holding that KBR’s claim 

accrued with the January 24, 2005 agreement.

Other Arguments

We have considered the other issues and arguments. 

We agree with the Board that KBR’s withdrawn 2008 

claim did not toll the limitations period, although this is 

irrelevant in view of our holding that this claim did not 

accrue before the critical date.

We take note of the Board’s concern for the lengthy 

pendency of this claim, and the Board’s suggestion that a 

contractor could indefinitely delay the accrual of its claim. 

KBR responds that the Allowable Cost and Payment 

clause of the Contract Disputes Act limits the time in 

which a contractor may seek reimbursement after a 

“physically complete contract” has been performed, citing 

48 C.F.R. § 52.216-7(d)(5). KBR states that the FAR 

requires it to submit a “completion invoice or voucher,” 

including “settled subcontract amounts,” within 120 days 

after indirect cost rates are determined for all years of the 

contract, id., and KBR must then release the government 

from further liabilities and claims under the contract, 

except for specified claims and unknown claims, 

id. § 52.216-7(h). KBR points out that a contractor cannot 

postpone a request for payment either unilaterally or 

indefinitely. The Army does not argue otherwise. Nor 

does the Army argue that the cost-plus-award-fee contract 

between KBR and the government became a physically 

complete contract at any time prior to the filing of the 

claim.

The court has confirmed that the limitations period of 

the Contract Disputes Act is not jurisdictional. See Sikorsky Aircraft Corp. v. United States, 773 F.3d 1315 (Fed. 
14 KELLOGG BROWN & ROOT SERVICES v. ARMY

Cir. 2014). However, in view of our decision that the 

statute of limitations does not bar this claim, equitable 

tolling need not be considered.

CONCLUSION

The Board’s dismissal on statute of limitations 

grounds is reversed. The case is remanded to the Board 

for determination of the merits of the claim. 

REVERSED AND REMANDED